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Thursday, May 14, 2015

Special Education Law: Maintenance of Effort - #MOE

From Jim Gerl's Special Education Law Blog

By Jim Gerl, Esq.
May 9, 2015

Maintenance of Effort is one of those special ed law concepts that gives people conniptions. You know- for some people it is discipline of kids with disabilities; for others it's MOE.

The theory is that unless certain exceptions are applicable, a public agency cannot spend less on special education this year than (it did in) the previous school year. The Department of Education recently adopted a final rule concerning MOE. You can review the rule in the Federal Register here.

Here is a good description of the changes by our friend Professor Mark Weber that recently was published on the Education Law Professor Blog:

"On Tuesday, April 28, the Department of Education issued a final rule covering maintenance of effort (sometimes called “non-supplanting”) by school districts and other local education agencies in connection with Individuals with Disabilities Education Act funding. As is the case with many other federal programs, IDEA aims to supplement, not supplant, what states and localities would be doing on their own.

Accordingly, LEAs are not permitted to reduce the level of expenditures from local funds below the level for the preceding fiscal year, except in specific circumstances, such as decreases in special education enrollment, the termination of services to a child with a particularly costly program, and the completion of construction or other expensive long-term projects."

What is newsworthy is the adoption of a rule, 34 C.F.R. § 300.203(c), that makes clear that if an LEA fails to meet the maintenance of effort requirement in a given year, the following year it must maintain or exceed the expenditures of the last year in which it met the requirement, rather than the year in which it failed to make the needed level of expenditures.

This new rule implements provisions of the Consolidated Appropriations Act, 2014 Pub. L. 113-76, 128 Stat. 5, 394, and Further Continuing Appropriations Act, 2015, Pub. L. 113-235, 128 Stat. 2130, 2499 with regard to recent federal appropriations.

It is also consistent with Department of Education policy announced in Letter to Boundy, 58 IDELR 261 (2012), which withdrew contrary guidance contained in Letter to East, 57 IDELR 108 (2011).

The new regulations also clarify the four ways in which the maintenance of effort requirement may be met (local funds only, combination of state and local funds, local funds on a per capita basis, state and local funds on a per capita basis).

Though some may react to the changes by asking “What took you so long?” clarifying the general policy and placing into the Code of Federal Regulations the specific rule about maintaining the level of expenditure for the last year in which the LEA met the maintenance of effort requirement should increase school districts’ understanding of what they have to do and facilitate compliance.

There is a helpful article on the new regulations in Disability Scoop. My book, Special Education Law and Litigation Treatise, has a general discussion of the maintenance of effort requirement and the cases and Education Department guidance in connection with it, at § 18.5.

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