U.S. Department of Education

December 9, 2013

Mary Louise Dirrigl,

U.S. Department of Education

400 Maryland Avenue SW.,

Washington, DC 20202-2600

Re: Comments to Docket ID ED-2012-OSERS-0020

Dear Ms. Dirrigl:

The Council for Exceptional Children (CEC) – an international community of educators, administrators, related service personnel, higher education faculty and researchers – is the voice and vision of special education. Our mission is to improve the quality of life for individuals with exceptionalities and their families through professional excellence and advocacy.

CEC appreciates the opportunity to comment on the Notice of Proposed Rulemaking issued on September 18, 2013 to amend regulations implementing the local maintenance of effort requirement under the Individuals with Disabilities Education Act (IDEA).

Through this NPRM, the Department seeks to add clarity to local maintenance of effort, a subject that is often confusing for stakeholders in the field and has become even more challenging to comply with as difficult economic circumstances plague states and communities across the nation. During challenging economic times, it becomes even more critical to have protections in place for funding dedicated to providing critical special education and related services to the nation’s six million children and youth with disabilities. In fact, a recent survey of over 1,000 special educators from every state conducted by CEC and the National Coalition for Personnel Shortages in Special Education and Related Services found that 83% of respondents report seeing an impact on the availability of services for students with disabilities, due to budget cuts at the federal, state, and local levels[1].

We believe CEC’s recommendations provide a balanced approach that adds additional clarity and acknowledges changes occurring within states as a result of the difficult economic times, all while maintaining the spirit of maintenance of effort and our commitment to children and youth with disabilities.

It is important to note, that there are many state-specific issues that are not addressed by this proposed regulation. Therefore, we urge the Department to take the opportunity to acknowledge that state-specific issues may need to be independently addressed by OSEP through additional guidance.

In addition, CEC understands that the feedback the Department is seeking is limited to specific questions regarding the implementation of local maintenance of effort and we look forward to a full discussion of this issue during the upcoming reauthorization of the Individuals with Disabilities Education Act.

The following pages provide a rationale for each of CEC’s recommendations. Please do not hesitate to contact me or Kim Hymes, Senior Director of Policy and Advocacy at or 703-264-9441.

Sincerely,

Deborah A. Ziegler, Ed.D

Associate Executive Director, Policy & Advocacy

Council for Exceptional Children

P: 703.264.9406

E:

CEC Recommendations

CEC’s recommendations correspond to areas the Department has requested feedback: (1) the compliance standard; (2) the eligibility standard; (3) the level of effort required of a local education agency (LEA) in the year after it fails to maintain effort under the IDEA; (4) additional explanation that can be provided by the Department.

Compliance Standard

CEC Recommendation: Revise the language in proposed §300.203(a)(2) compliance standard to become an affirmative statement (i.e. change to: ”An LEA meets this standards if –“ ).

CEC Rationale: CEC supports the Department’s effort to add clarity to the maintenance of effort requirements for an LEA. However, §300.203(a)(2) is written in the negative (“An LEA meets this standard if it does not –“), and therefore may add confusion rather than the indented clarity. Therefore, CEC encourages the Department to rewrite this section in the affirmative so that LEAs can have an understanding of how they can meet the compliance standard.

Eligibility Standard

CEC Recommendation: Revise the language in proposed §300.203(b)(1) to make explicit reference to the authorized exceptions for reducing MOE found at §§300.204 and 300.205.

CEC Rationale: It is important to include a reference to the allowable exceptions and adjustments to MOE in this section to prevent LEAs from being found ineligible because they lack sufficient local or combined state and local, funds and have either failed to identify in their budget calculations authorized reductions under §300.204 or have not been permitted to include any authorized reduction in their proposed budgets. (This issue is especially relevant as national demographics indicate a decline in the eligible population of children with disabilities.)

CEC Recommendation: Clarify the language in §300.203(b)(1) which proposes that an LEA must submit a budget to the SEA to meet the eligibility standard.

CEC Rationale: CEC is concerned that the Department is proposing to change the requirement of LEAs from providing an assurance to a budget as part of the eligibility standard. This change must be clarified to reflect whether it is the intent of the Department for a state to receive a detailed special education budget from the LEA, or rather an overall amount the LEA is planning to spend on all special education expenditures for the upcoming fiscal year. Section 613(a) of IDEA requires LEAs to “submit a plan that provides assurances” to the SEA, rather than a detailed budget. If the Department is intent on requiring an LEA to submit a budget to the SEA, CEC strongly encourages the Department to clarify that a budget figure reflecting the total local special education investment fulfills this requirement and an itemized budget is not necessary.

Subsequent Years

CEC Recommendation: CEC supports §300.203(c) which clarifies that an LEA’s level of expenditures for purposes of calculating MOE is the amount when the LEA last adhered to MOE requirements, not the LEA’s reduced level of expenditures.

CEC Rationale: CEC supports the spirit and intention of maintenance of effort to ensure that children and youth with disabilities receive necessary special education and related services and therefore supports §300.203(c). However, CEC strongly urges the Department to provide extensive technical assistance to states and LEAs to ensure they understand the four comparisons (state-and-local total or per capita; or local-only total or per capita), as well as the allowable exceptions within §300.204 and the adjustment in §300.205. The preamble of the NPRM concludes that a misunderstanding of the existing provisions, exceptions, and adjustments may be causing some LEAs to be deemed out of compliance.

CEC Recommendation: Revise language in §300.204(d) to clarify that “costly expenditures for long term purchases” can include other expenditures beyond the two examples listed, acquisition of equipment or construction of school facilities.

CEC Rationale: This NPRM acknowledges that there is confusion regarding the implementation of MOE within states and LEAs. In fact, the preamble of the NPRM explains “… states are not applying the exceptions in §300.204 correctly or are not applying them at all.” As a result of confusion about the exceptions in §300.204 as well as in other areas of MOE, states may be finding LEAs in noncompliance. CEC believes it is important to ensure that states and LEAs have a full understanding of the exceptions currently allowed by the IDEA statute and regulations.

To ensure that states and LEAs have a full understanding of the exceptions outlined in §300.204, CEC strongly urges the Department to use this opportunity to clarify language in “(d) The termination of costly expenditures for long term purchases, such as the acquisition of equipment or the construction of school facilities.” It is our understanding that the interpretation of this provision has been limited to the two examples provided (equipment and facilities). CEC urges the Department to use this opportunity to clarify that §300.204(d) can include other costly expenditures, such as reduction of personnel healthcare or pension costs.

As a result of the poor economy, many states and localities are reducing benefits provided to educators, such as healthcare and pensions. In fact, many state legislatures are considering or have passed state laws reducing such benefits for public service employees. As a result, it may appear that LEAs are reducing their special education expenditures, when in fact, the reduction is merely a reflection of the fewer personnel benefits offered by school districts, sometimes done to comply with state law. Because such a reduction does not impact the availability or delivery of special education services for children and youth with disabilities, CEC believes that these examples should be considered a “termination of costly expenditures for long-term purchases” and therefore an allowable exception within §300.204. It is our hope that this clarification would provide relief to LEAs struggling to meet MOE due to states and LEAs paying less for personnel benefits.

Additional Clarification/Recommendations

CEC Recommendation: To increase the understanding of the MOE provisions outlined in this NPRM and additional requirements in the current regulations, CEC urges the Department to provide additional technical assistance to states and LEAs. For example, the Department should provide information regarding the exceptions and adjustments already allowed under statute and regulations.

CEC Rationale: As the Department suggests, MOE is a complex issue that is frequently misunderstood by practitioners and administrators in the field. Further complicating this issue is the impact the poor economy and sequestration is having on federal, state and local education budgets. In light of this fiscal environment, it would be helpful for the Department to share with SEAs and LEAs how they can adhere to all of the MOE regulations, including the exceptions and adjustment which, as the Department states, they may not be aware of.

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[1] http://www.cec.sped.org/~/media/Files/Policy/BudgetCutsSurveyReleaseCEC.pdf