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Special Education

Administrative Advisory SPED 2018-1:
Guidance and Workbook for Calculating and Providing Proportionate Share Services for Students with Disabilities Enrolled by Their Parents in Private Schools

To:
Superintendents, Special Education Administrators, Business and Other Education Personnel
From:
Russell Johnston, Senior Associate Commissioner and State Director of Special Education
Date:
July 27, 2017

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There will be 6 attachments as part of the advisory:

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Attachment A: Proportionate Share Timeline (Page 17)
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Attachment B: Suggested Roles for Proportionate Share Activities (Page 18)
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Attachment C: Sample Written Affirmation (Page 19)
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Attachment D: Summary of District Obligations (Page 20-21)
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Attachment E: Sample "Services Plan" Form (Page 22)
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Attachment F: Frequently Asked Questions (Page 23-24)

Introduction

The Department of Elementary and Secondary Education (ESE) provides this consolidated Advisory to guide Massachusetts public school districts in meeting their federal obligations regarding students with disabilities enrolled by their parents in private schools, including secular, non-secular, and independent schools, or home schooled within the district.1 Districts have an obligation to locate and evaluate such students and to calculate and spend a proportionate share of federal special education (Individuals with Disabilities Education Act or IDEA) grant funds on equitable services for these students. Please note that this advisory consolidates and replaces previously issued guidance, Administrative Advisory SPED 2007-2: IDEA and Private School Students (updated July 2008) and Technical Assistance Advisory SPED 2017-2: Calculating and Providing Proportionate Share Services. Both of these advisories are now withdrawn. This guidance is not intended to be a replacement for careful study of the IDEA and its implementing regulations or of controlling case law. Additional information regarding federal requirements can be found on the website of the U.S. Department of Education, Office of Special Education Programs (OSEP).

This Advisory will discuss proportionate share matters including district requirements of consultation with representatives of private schools, child find, evaluation and determination of eligibility, child count, calculating proportionate share, allowable and non-allowable expenditures, development of services plans, and provision or contracting for services for privately enrolled students. The Advisory also details federal and state requirements to provide special education services to parentally placed private school students and offers information on reconciling the differences between the two. Attached to this Advisory are a Proportionate Share Timeline, Suggested Roles for Proportionate Share Activities, Sample Written Affirmation, Summary of District, Sample "Services Plan" Form, and Frequently Asked Questions. Additional information can be found at the ESE website Proportionate Share Services for Students with Disabilities Enrolled by Their Parents in Private Schools.

Purpose

ESE's intent is to simplify the instructions, delineate responsibilities, and offer clear, concise best practice guidance for proportionate share activities for Massachusetts school districts. This information is for special education administrators, school business managers, and other interested parties regarding required activities such as consultation, child find, evaluation, proportionate share calculation, and expenditures. Such activities are required to demonstrate compliance with the federal requirements of the IDEA regarding proportionate share services for eligible privately-enrolled students who are educated within the geographic boundaries of the school district, including home schooled students.

Proportionate Share Overview

Proportionate share is a portion of a district's IDEA funds allocated to eligible parentally-placed students who are privately educated in the district's geographic boundaries regardless of where the students live. Parentally-placed private school students with disabilities refers to children with disabilities enrolled by their parents in private, including religious and independent,2 schools or facilities that meet the definition of an elementary school or secondary school.3 It is important to note, in Massachusetts, privately-enrolled students include students who are educated at home under a plan reviewed and approved by the district.

District Requirements

Annually, all districts with private schools or home schooled students within their geographic boundaries must calculate proportionate share, demonstrate upon request that they have spent this amount of IDEA grant funds on eligible students who are privately enrolled and educated in the district, and submit the Proportionate Share Form to ESE. Districts are required to conduct a variety of activities related to provision of proportionate share special education services for students who are privately enrolled by their parents. These activities, discussed in depth below, include consultation, child find, evaluation and determination of eligibility, determination of the proportionate share amount, expenditure of the proportionate share, development of services plans, and provision of services either directly or through contracts. ESE has developed a Proportionate Share Timeline, included below, that districts may use to plan the required activities (Attachment A: Proportionate Share Timeline).

Consultation with Representatives of Private Schools

IDEA requires that public school districts ensure that leaders of private schools and parents of private school and home schooled students have opportunities to engage in "timely and meaningful" consultation about the opportunity to access special education.4 Effective consultation should occur prior to other required activities and provide an opportunity for all parties to express their views and to have those views considered by the district as part of the decision-making process.5 Timely and effective consultation requires districts to invite and consult with representatives of the private schools and parents of privately-enrolled and home schooled students who are educated within the geographic boundaries of the district. (Attachment B: Suggested Roles for Proportionate Share Activities)

The consultation must occur prior to providing proportionate share services and must allow input from these representatives on the types of services to be provided and the delivery of services. In this consultation, the district must discuss all of the areas that follow.

  • Child find:
    • the child find process for privately-enrolled students and how parents, teachers, and private school officials are to be informed about this process;
    • how parentally-placed private school children suspected of having a disability can be evaluated for eligibility and be offered equitable participation in special education services;
  • Determination of Proportionate Share:
    • the amount of funds available under the proportionate share requirements and how proportionate share was determined using the ESE form;
  • The consultation process, methodology, and schedule for the year:
    • the process the school district will use in providing private schools and parents with opportunities for input throughout the school year;
  • Determination of services and their method(s) of provision:
    • a discussion of student needs and possible types of special education and related services that can be either directly or through alternative service delivery mechanisms;
    • consideration that federal grant funds can be used to provide services on the grounds of private schools, although services provided with state and local funds must be provided at a "public school facility or other public or neutral site;"6
    • If the amount of proportionate share grant funds are insufficient to serve every student, a discussion of how the district will apportion the services among eligible students, or may choose to supplement the proportionate share of the grant funds with additional grant funds or with state or local funds.

Written Affirmation following consultation7

  • When the timely and meaningful consultation has occurred, the school district must obtain written affirmation to that effect signed by the representatives of the private schools and participating parents. (Attachment C: Sample Written Affirmation) While the law does not require the signature of the representative parents, we recommend that districts obtain the signature of all participants in the consultation. These signatures must be kept on-site at the school district.
  • If the representatives of the private schools, including home school parents do not provide written affirmation within a reasonable amount of time, the district must forward documentation of the consultation process to the ESE district liaison.

Child Find

School districts must conduct child find activities for all students living or attending school in the district, regardless of whether students attend public or private schools or are home schooled. Child find activities for privately-enrolled students must be comparable to those conducted for students in public schools and must include all students who are privately educated, including those who are home schooled, in the district. The district also must provide all private schools and students who are privately enrolled with information about how students can access publicly funded evaluations and special education services.8 (Attachment D: Summary of District Obligations)

If a student lives in one Massachusetts district but attends a private school in another district, the district in which the private school is located should contact the district in which the student lives9 to determine whether a determination has already been made regarding eligibility. Both school districts have an obligation to determine eligibility under separate laws. State law puts the obligation on the district of residence,10 and federal law requires the district where the private school is located do so.11 The district that conducts the evaluation should provide the results of the evaluation to the other district. District responsibility is determined according to the respective federal and state requirements.

Evaluation and Determination of Eligibility

IDEA requires school districts to evaluate and to determine whether students are eligible for special education services if they are privately enrolled and receiving their education within the district's boundaries. The Massachusetts school district where the private school is located may conduct its own evaluation in a manner consistent with the requirements of state and federal law12 or may accept a prior evaluation if the evaluation information is comprehensive and current.13 Eligibility for all students attending school in Massachusetts is determined using criteria based on the definitions of disability.14

Child Count and the Calculation of Proportionate Share

After completion of timely and meaningful consultation, child find activities, and eligibility determinations, districts conduct the child count to be used in calculating proportionate share. Districts must determine the child count of students ages 3-21 on any date between October 1 and December 1, inclusive, of each year. The child count is used to determine the amount that the district must spend providing special education and related services to parentally-placed private school children with disabilities in the subsequent fiscal year.15 The child count is the number of eligible students who are privately-enrolled or home schooled and educated within the district, not the number of such students receiving services.16 Preschool aged children are considered to be parentally-placed private school students if they are enrolled in a private school that meets the definition of an elementary school.17

It is important to note that in calculating proportionate share, students who attend private schools located in a district other than the one in which they live are not included when the district of residence calculates or decides how to spend the proportionate share of IDEA grant funds. Students who live in one Massachusetts district and attend private school in another district must be counted for proportionate share child count activities by the district in which they attend private school, even though they may receive services through an IEP from the district in which they live, consistent with state law. This is true even though the district of residence may develop the IEPs of eligible students, provide special education and related services, and report these privately-enrolled students to ESE through Student Information Management System (SIMS). Even if a parent refuses the services provided under a services plan or a student is receiving services from their district of residence, the district where the private school is located must include this child in the count of eligible private school children with disabilities in that district in determining proportionate share.18

To assist districts with calculation and documentation of proportionate share, the ESE has created the Proportionate Share Calculation Form. To calculate proportionate share, the district must know:

  1. the total IDEA Part B grant funds in a fiscal year;
  2. the number of eligible public school students who live in and attend school/are enrolled in the district;
  3. the number of eligible parentally-placed students attending private school in the district in an elementary or secondary school. This includes:
    1. students who live in the district and attend a private school in the district;
    2. students who live outside the district but attend a private school in the district;
    3. students who live in the district and are home schooled in the district; and
    4. out-of-state students who attend a private school located in the district.

    Example

    There are five (5) eligible private school students enrolled in private schools or home schooled within the geographic boundaries of Anytown District; two (2) are district residents, one (1) lives in another Massachusetts town, one (1) lives in another state, and one (1) is home schooled. The district also serves 495 eligible students who reside and are enrolled in the district.

    Anytown District also serves five (5) students who are enrolled in private schools located in other districts, as required by Massachusetts law. These students are, however, not included in Anytown District's proportionate share calculation. Rather, these students must be included in the proportionate share calculation for the districts in which the private schools they attend are located.

    The total number of eligible students privately-enrolled and enrolled in public schools in Anytown District is 500. This includes the five privately enrolled or home schooled students referred to above and 495 eligible students enrolled in the district. The district's proportion of eligible parentally-placed private school students to all eligible students is 5:500 or 1%.

    Anytown District received $200,000 under Fund Code 240, the IDEA Part B grant. Because the proportion of private school students with disabilities is 1% of all students with disabilities, the "proportionate share" of the federal special education funds is 1% of the total grant of $200,000, or $2,000.

    Anytown District must spend at least $2,000 of its federal grant on services19 for the five parentally placed private school students and home schooled students educated in the district to meet its proportionate share obligation under IDEA.

Finally, once timely and meaningful consultation has occurred, the proportionate share is calculated, and the district determines the services that it will provide, the district documents how it will spend the proportionate share funds in the next subsequent fiscal year. ESE collects this information annually in the Proportionate Share Calculation Form.

Written Explanation by school district regarding service decisions

If the school district disagrees with the views of the private school officials on the provision or type of services, the district must provide private school officials with a written explanation of the reasons the district chose not to provide services directly or through a contract. The school district, however, has the final decision-making authority.

Expenditure of Proportionate Share

Under federal law, school districts determine which services to provide with the proportionate share of federal funds following consultation with representatives of the private schools located in the district and parents of eligible private school and home schooled students. There are many ways in which the district may decide to spend proportionate share funds following consultation. For example, depending on the proportionate share amount, students' needs, and other considerations discussed during consultation, the district may expend the entire federal proportionate share on only one eligible student or may decide to allocate an amount for services for more than one or for all of the students. Regardless of what a district may spend on IEP services for privately-enrolled students who live in the district, any districts with a private school located in its geographic boundaries that eligible students attend must calculate proportionate share and must demonstrate how the district will spend federal IDEA grant funds in that proportionate amount on special education services for these students.

The federal regulations regarding expenditure of proportionate share funds make clear that state and local funds may be used to supplement but not supplant the required expenditure of federal funds.20 If a district has not expended their proportionate share minimum obligation of federal funds by the end of the fiscal year, the district must obligate and carry over the remaining funds for special education and related services for privately-enrolled students for one year.21 Using federal funds, districts may provide services for students who are privately enrolled on the premises of the private schools.22 Districts also may provide transportation.23 As a reminder, state and local funds may be used to provide services at the public school or another public or neutral site.

Carry-over Year

If a district has not met the minimum level of required proportionate share expenditure for the fiscal year, they must carry over the additional amount not spent to the next fiscal year's proportionate share obligation. If, after the carry-over period, a district is unable to expend the entire proportionate share and assuming the district is in compliance with the child find, consultation, and other requirements related to parentally placed private school children with disabilities, they may use the unexpended funds - at the end of the period during which the funds may be spent on parentally placed private school children - to pay for other allowable IDEA district expenditures. This situation should be the exception, and reasons for it should be clearly documented by the district.

Example:

Anytown District calculated a proportionate share amount of $1,400 that they needed to spend in FY17 for purposes of proportionate share on services for eligible private school students attending a private school or home schooled in the district's boundaries. There is only one eligible private school student, and his parents have declined services. The public school district has offered to spend proportionate share funds on indirect services such as professional development for private school personnel working with the student. The private school has also declined this. Therefore, Anytown District has not spent its proportionate share for FY17. For FY18, Anytown District must add the $1,400 of carry-over funds to the proportionate share amount for FY18. The district will report these carry-over funds on the budget tab of the proportionate share form that it submits with the grant application for Fund Code 240.

Allowable Expenditure of Proportionate Share

Allowable ExpendituresUnallowable Expenditures
  • Benefit only eligible students who are privately enrolled
  • Direct services (preferred)
  • Use of Personnel:24
    • Can make public school personnel available in other than public facilities25; or
    • Can pay for the services of an employee of a private school to provide services outside of his or her regular hours of duty and only if under public supervision and control
  • Indirect services, which can include, but are not be limited to:
    • consultative services
    • equipment and materials26
    • training for private school teachers and other private school personnel.
  • Transportation27
  • Administrative costs of child find and evaluation
  • Child find
  • Evaluation
  • Separate classes28
  • Repairs of private school facilities
  • Minor remodeling of private school facilities
  • Construction of private school facilities.29

Equipment and Materials: The district must control and administer federal funds used to provide special education and related services. The district must oversee all materials, equipment, and property purchased with those funds including, but not limited to, ownership of and rights to such materials, equipment, and property. Equipment and supplies may be placed in a private school for a period of time only to service eligible individual students and only if the equipment and supplies can be removed without remodeling the private school facility. The district must remove such equipment and supplies when no longer serving those students or if the equipment and supplies are being used in an unauthorized manner. Districts may not use funds for any repairs, minor remodeling, or construction of private school facilities.30

Requirement: Proportionate share funds are intended only to benefit eligible students who are parentally-placed in private schools or home schooled. Funds must not "finance the existing level of instruction in a private school or … otherwise benefit the private school."31 Public funds, including federal funds, may be used to meet the needs of the parentally-placed private school children and may not be used to benefit the private school as a whole or the general needs of students enrolled in the private school.

Development of Services Plans

Every parentally-placed private school child with a disability who has been designated to receive proportionate share services must have a services plan that describes the specific special education services that the district will provide, including where the district will provide services to the student.32 A sample services plan is included as attachment (Attachment E: Sample "Services Plan" Form). A services plan is not the same as an IEP that eligible students are entitled to receive from the district in which they live. Districts, however, to the extent appropriate, must develop, review, and revise services plans consistent with the IEP process. This includes, but is not limited to, inviting private school representatives and parents to meetings to develop services plans.33 The parents of the child are required participants in the meeting to develop the services plan for their child.34

Proportionate share services plans do not confer an individual entitlement to special education and related services. Additionally, IDEA does not require that a parent provide written consent to a services plan. A parent, however, may refuse services proposed in a services plan.

Providing or Contracting for Services

Districts may use federal funds to facilitate a private school student's access to proportionate share services in a number of ways. Districts may provide services on site at the private school, provide services at a public or neutral site convenient to the private school, provide services on public school grounds, and contract for the provision of services at an appropriate site, ensuring that they provide transportation to the students. Many private schools would welcome the opportunity to facilitate students' access to services on the grounds of the private schools and would work cooperatively with districts to do so.

State and Federal Requirements to Provide Special Education Services to Parentally Placed Students Who are Privately Educated

Requirements in IDEA for providing special education services to eligible private school students differ from those under state law. As described more fully below, state law requires districts to evaluate and develop IEPs for all eligible students who live in the district. In contrast, federal law requires districts to spend a "proportionate share" of their federal IDEA grant - known as Fund Code 240 in Massachusetts - on services for eligible students who are privately enrolled and educated within the geographic boundaries of the district using a "services plan."

State law applies to eligible students who reside in Massachusetts

State law regarding special education applies to all Massachusetts residents, regardless of where they attend school. It requires school districts to offer special education and related services to all eligible students who reside in the district,35 including students who are privately enrolled, regardless of where the student attends school.36 In Massachusetts, privately-enrolled students are those students who attend private schools, including non-secular schools and approved special education schools at private expense,37 and students who are home schooled. Special education and related services must be designed to meet the needs of eligible students and must provide these students with a genuine opportunity to participate in the public school special education program. Students have an individual entitlement to receive these services. The school district must provide or arrange for evaluation, convene at Team to determine eligibility and create an IEP, and make services available to all eligible students who reside in the district, regardless of where they attend school.

Under state law, services described in an IEP that are funded with state or local funds must be provided in a public school facility or in another public or neutral site.38 Schools may provide services at the private school if only federal funds are used; state and local funds cannot be used for services at private schools. State law requires that special education and related services for eligible privately enrolled students must be comparable in quality, scope, and opportunity for participation to those provided to public school students with disabilities,39 and must be described in an IEP. Eligible privately enrolled students served by the districts in which they live have individual educational and due process rights, as defined in IDEA.

For students attending private schools outside of the district of residence, the district where the private school is located must make reasonable efforts to provide services to the private school student in the community where the private school is located. If, after making such efforts the district determines that no such arrangements are feasible, the district may serve the student in the district of residence or another location.40 The district may need to provide the student with transportation in order to ensure that the student has access to the necessary services.41

Federal law applies to privately enrolled eligible private school students according to the location of the school they attend

Federal special education law, IDEA, also requires school districts to provide special education services to eligible privately-enrolled students. Federal law, however, does not provide such students an individual entitlement, the development of IEPs for privately-enrolled students, or the same due process rights. Under IDEA, school districts must conduct child find activities and evaluations to determine students' eligibility for special education.42 In contrast to state law that requires all eligible students to have an IEP, federal law requires school districts to expend a "proportionate share" of the federal grant money districts receive under Part B of IDEA to provide services to parentally-placed and privately-enrolled students.43 Proportionate share means that the district must spend an amount of federal grant funds on services for eligible students who attend a private school in the district that corresponds to the proportion that these private school students represent in comparison with the total population of students with IEPs served by the district.44

Following timely and meaningful consultation with private schools that are located within the district and with parents, school districts must make decisions regarding the child find process and which services to provide with the proportionate share of federal IDEA grant funds. Districts provide these services to eligible private school students attending a private school within the geographic boundaries of the district through a "services plan" instead of an IEP,45 because privately-enrolled students do not have an individual entitlement to the full range of special education and related services under federal law. Federal due process protections generally are not available to privately-enrolled students under IDEA.46

Reconciling the Differences between State and Federal Requirements for Private School Students

Federal law requires that the district where the private school is located, rather than the district of residence, fulfill the requirements for child find and for proportionate share services.47 This is intended to improve private school students' access to special education services by decreasing obstacles to student participation and simplifying consultation with private schools. The district where a private school is located must meet federal special education requirements for all eligible students who are privately enrolled in schools within the geographic boundaries of the district, regardless of where those students live.

Massachusetts law, however, requires the school district where the student resides to offer special education and related services to eligible students through IEPs. Students who live in Massachusetts have individual entitlements to special education and related services, including services described on IEPs. The districts in which privately-enrolled students live are responsible for finding, evaluating, and providing services to such students.

Because there is an overlap of responsibilities under federal and state law, a parent may choose whether to seek an evaluation and services from the district of residence or from the district in which their child is privately enrolled.48 When a request for an evaluation is received by a district, ESE recommends that the district consult with other districts that may have evaluated or provided services to the student.

A district's obligations under state and federal law will vary depending upon where students live and where they are privately enrolled and the choices a parent makes regarding evaluation and services for their child. For some students who are privately enrolled, such as those who are home schooled, the district in which they live will be the same as the district in which they attend school. In those situations, the district of residence is responsible for fulfilling all obligations under state and federal law. Other students live in one district and attend a private school in another district. In these cases, the two districts will need to coordinate to meet state and federal obligations for these students. The district in which the student attends private school is responsible for meeting federal proportionate share obligations, and the district of residence is responsible for meeting state special education requirements of free, appropriate public education. For students who reside in another state but attend a private school in Massachusetts, the district in which the private school is located must fulfill the proportionate share obligations under federal law.

Complaints and Due Process

Under federal law, a private school official or a parent has the right to submit a complaint to ESE that the district did not meet the requirements under IDEA for privately enrolled students, such as engaging in consultation that was timely and meaningful or giving due consideration to the views of the private schools. Such complaints may be made through ESE's Problem Resolution System and must allege "a violation that occurred not more than one year prior to the date that the complaint is received."49

Under federal law, however, parents are not entitled to due process protections to challenge the sufficiency of the proposed proportionate share services or the districts' actions in connection with a services plan for a student. A parent, however, may file a complaint with the district regarding child find requirements.50 Child find complaints should be filed with the district in which the private school is located and a copy must be forwarded to the ESE's Problem Resolution System.

Parents of eligible students who live in Massachusetts may also receive special education and related services through an IEP from their district of residence. Such parents and students have access to the full range of dispute resolution and due process options described in state and federal law. They may file a state complaint with ESE through the Problem Resolution System or seek a hearing or mediation with the Bureau of Special Education Appeals on any matter related to evaluation or special education services.

Reporting and Oversight

ESE will exercise oversight of proportionate share activities in three ways. These include (1) an annual review of data; (2) Coordinated Program Review processes; and (3) financial audits.

  1. Review of Data: ESE uses the Proportionate Share Form to review data on consultation, child count, and projected use of IDEA grant funds. ESE examines data for developing trends.
  2. Coordinated Program Review: ESE reviews two criteria during the Coordinated Program Review for Special Education Monitoring process regarding privately-enrolled students. The criteria are entitled: SE 39-A: Procedures used to provide services to eligible students enrolled in private schools at private expense whose parents reside in the district, and Item SE 39-B: Procedures used to provide services to eligible students who are enrolled at private expense in private schools in the district and whose parents reside out of state.
  3. Financial audits: ESE's Office of Audit and Compliance reviews compliance with special education financial requirements, including proportionate share requirements annually. A financial audit will examine the calculation of proportionate share and the corresponding Fund Code 240 budget,51 the back-up documentation such as the list of private school students, the signed Written Affirmation of Consultation, and the documentation of spending of the proportionate share for the appropriate services.

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We hope this Advisory assists special education administrators, school business managers, and other interested parties in understanding these requirements and in ensuring that local practices are consistent with state and federal law.

For more information:

If you have any questions or require additional information regarding this Advisory, please contact Andréa Coté at the Department of Elementary and Secondary Education (781-338-3382) acote@doe.mass.edu.

Thank you for your cooperation and your service to students.


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Last Updated: July 26, 2017
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