Guest Post by Lauren O’Connell Mahler with McAndrews Law About Delaware IEPs

Lauren O’Connell Mahler is a special education attorney in the Wilmington offices of McAndrews Law Offices, P.C.  McAndrews has two offices in Delaware, the one in Wilmington and one in Georgetown which opened last year.  The original article appears on the website of McAndrews Law Offices.  This article was republished with the permission of McAndrews Law Offices, P.C. This is a must-read for Delaware parents, especially now when IEPs are in the creation process or getting an annual revisit.  Special education law is very tricky and many parents are unprepared for what is allowable by law and what is not.  Parents are the #1 advocate for their children with disabilities and they should always prepare ahead of time for any IEP meeting.  Know your child’s rights with special education!

Learning to read your child’s Delaware Individualized Education Program (IEP) can be an intimidating task. IEPs are filled with legal language and educational jargon that can be overwhelming. Without a basic understanding of your child’s IEP, you may be feeling reluctant to offer input at your child’s IEP meeting.

As a parent, you are an equal member of your child’s IEP team. Thus, it is essential that you understand your child’s IEP so that you can help the IEP team develop the IEP, monitor your child’s educational progress, and advocate for his/her needs. The following is a list of the basic components that make up your child’s IEP in Delaware. Items are addressed in the order in which they typically appear in Delaware IEPs:

• “Disability Classification” – Your child must meet one of the 13 eligible disability classifications in order to qualify to receive special education services. The categories are Autism; Developmental Delay; Deaf Blind; Emotional Disturbance (ED); Hearing Impairment; Learning Disability (LD); Intellectual Disability; Orthopedic Impairment; Other Health Impairment (OHI); Speech and/or Language Impairment; Traumatic Brain Injury; Visual Impairment; and Preschool Speech Delay. The classification does not dictate the services that your child can receive. His/her services should be based on your child’s unique, individual needs.
• “Data Considerations” – Here, the IEP team should list all current data about your child that they reviewed in developing the IEP. This includes, but is not limited to, current school district evaluations, independent evaluations obtained by the parent, State and local test results (such as DCAS scores), classroom test results, progress reports, and the parent’s educational concerns. The data should serve as the basis for the services and supports that the team puts into the IEP.
• “Other Factors to Consider” – These list special factors that the IEP team might need to be aware of with your child. The boxes should be checked if your child has difficulty with communication, is blind or visually impaired, is deaf or hearing impaired, is limited in his/her English Language proficiency, needs Assistive Technology, or has a print disability that prevents them from using materials presented on a physical page.
• “Transition Services” – This page is included in  beginning at least by age 14 or 8th grade. It should include a statement of your child’s measurable, individualized goals for life after high school, including where they plan to live, work, and whether they intend to pursue any higher level education or training. It should be based on data (such as Parent and Student Transition Surveys). It also lists the classes your child is taking, which should be tailored to help them achieve his/her post-high school goals, as well as any activities they will complete to help them reach his/her goals, and any outside agency who will help your child prepare for the transition to adult life (such as Division of Vocational Rehabilitation, Division of Developmental Disabilities Services, DART Bus Service, and POW&R).

“Unique Educational Needs and Characteristics” – The middle pages of your child’s Delaware IEP should list each of your child’s unique educational needs. The need will be identified in box at the top, left-hand corner of the page. The rest of the page will detail the services and accommodations being provided to address that need as follows:

• The top, right-hand box includes a statement of any supplementary aids, modifications, services, or accommodations that will be put in place to address your child’s unique educational need. These should be based on the supports that were recommended in your child’s evaluations.
• “Services, Aids & Modifications” – This is a statement of the duration, frequency, and location of any special instruction that your child is receiving to address the unique need (for example: Small Group Reading Instruction – 3 times per week for 30 minutes in a Push-In location). Push-In means within the general education classroom. Pull-Out means in a separate classroom.
• “PLEP” – The Present Level of Educational Performance is a specific statement of what your child is currently able to do in that unique area of need. It should be based on current data and should be measurable. The PLEP is the starting point for setting an annual goal and measuring your child’s progress.
• “Benchmark” – These are the interim steps your child will take over the course of the year to reach his/her annual goal. They are typically measured each marking period. Monitoring whether your child is meeting his/her benchmarks will help you determine if they are making sufficient progress toward his/her annual goal. If your child is failing to meet his/her benchmarks, his/her IEP may need to be revised to provide more support.
• “Annual Goal” – This is a statement of what the IEP team feels the child can achieve within 1 year’s time. The goal should be specific and measurable and should clarify how it will be measured. The amount of progress should be realistic and attainable, but not trivial. The language in the annual goal should be aligned with the language of the PLEP and benchmarks.
• “Related Services” – Related services provide extra help and support to your child in needed areas. They can include, but are not limited to, any of the following: Speech/Language Therapy, Occupational Therapy, Physical Therapy, Counseling Services, Parent Training and Counseling, Social Skills instruction, Audiology, Therapeutic Recreation, Social Work Services, School Health Services, Medical Services for diagnostic or evaluation purposes, Orientation and Mobility Services, and Psychological Services. The IEP must specify the frequency and duration of these services.
• “Consideration of Eligibility for Extended School Year Services (ESY)” – The team must document whether your child is eligible for extended school year services. ESY is different from summer school or credit recovery. It is based on the needs and goals in your child’s IEP. There is no single factor that determines whether a child is eligible for ESY. Instead, the IEP team must consider a variety of factors, including whether the child has made meaningful progress towards his/her IEP goals or has a tendency to regress in critical skill areas during the summer. Note: Under Delaware law, children classified under certain disabilities automatically receive 12-month educational programs.
• “Least Restrictive Environment” – The IEP must specify what placement your child is in. The placement (or LRE) is the extent to which your child will not participate in general education classes and extracurricular activities. The IEP lists a continuum of placements ranging from Setting A (for children who spend at least 80% of the day in the regular classroom) to Settings E, F, and G (for children who are in separate Residential Facilities, Homebound or Hospital placements, or Correctional Facilities).
• Additional components attached to Delaware IEPs – If your child has a Behavior Intervention Plan or Positive Behavior Support Plan, this should be attached to your child’s IEP and is part of the document. Additionally, if your child needs accommodations on the State-wide Smarter Balanced, DCAS, or SAT assessments, the checklist of Smarter Balanced, DCAS, or SAT accommodations should be attached to the IEP.*

This article was designed to provide you with a basic framework for understanding your child’s Delaware IEP. The information within this article is not, nor is it intended to be, legal advice. You should consult an attorney for individual advice regarding your own situation.

Editor’s note: The * in the last bullet point was edited by myself to reflect the Smarter Balanced and SAT assessments as well as DCAS.

 

 

Did Appo Shoot Itself In The Foot Tuesday Night?

Lastly, to the charge that money was transferred out of the tuition fund, Longfellow said that was true, but said that happens nearly every year and is a legal maneuver.

Additionally, Forsten explained that the money went to funds that help settle costs that aren’t part of the tuition tax budget itself.

Mr. Forsten, could you please tell me what the legal maneuver is that allows Appoquinimink School District to transfer funds out of the tuition fund and how it is legal?

I saw an item on Appoquinimink’s board agenda for last night that said “Tuition Tax Clarification”.  Assuming this was in response to my articles about their tuition tax warrant last month, I figured I would wait until their board audio recording to address this.  But as luck would have it, I didn’t have to wait very long because Kilroy just wrote an article based off WDEL’s article on the subject at their board meeting Tuesday night.  The above quote, taken from the WDEL article, clearly shows that Appoquinimink Superintendent Matt Burrows, Chief Financial Officer Dr. Charles Longfellow, and the Appo Board President Richard Forsten aren’t too familiar with Delaware accounting procedures and policies.

You can’t just take money from revenue collected through a tuition tax warrant and apply it anywhere you want.  That isn’t how it goes.  The law in Delaware is VERY clear about this:

§ 604 Special programs.

(a) If any pupil is counted in the preschool, intensive or complex unit and attends school in a program operated by a district other than that in which the pupil resides, by an agency of the Department of Education or is in an approved private placement pursuant to § 3124 of this title, the receiving district or the Department of Education shall collect a tuition charge for the nonresident pupil, provided approval for attendance has been granted by the sending district. Such tuition charge shall be paid by the school board of the reorganized school district in which the pupil is a resident from the proceeds of a local tax levied for this specific purpose, except that in the case of a district assigned by the Department with the approval of the State Board of Education to administer a school or program for children with disabilities, or special programs approved by the Department of Education for persons without disabilities such as programs for bilingual students or programs for pregnant students, the district so assigned shall be both the sending and receiving district in regard to that school or program and is authorized to collect tuition charges accordingly.

(b) In determining the tuition to be charged for a pupil counted in the preschool, intensive or complex units or for a person without disabilities attending approved special programs, such as bilingual programs or programs for pregnant students operated by a district other than that in which the student resides or by an agency of the State Department of Education, the receiving district or the State Department of Education shall compute the tuition by adding such receiving district’s share of educational related expenses as allowed by the Department of Education regulations. The sum so obtained shall be divided by the total number of pupils in the special program as of September 30 of the current school year. The resulting figure shall represent the amount of the “tuition charge” per pupil.

(c) In determining the tuition charged to the sending district in the case of private placement for children with disabilities, tuition will be defined as in § 3124 of this title and the sending district will be charged 30 percent of the total tuition cost. The remaining 70 percent will be covered through funding provided by the State Department of Education from the annual appropriation for this purpose.

(d) Section 602(c)-(e) of this title shall apply to this section.

And let’s see what Section 602(c)-(e) states:

(c) The bill for tuition charges shall be verified by the Secretary of Education within 20 days after receipt of such bill. No bill for tuition charges shall be paid until such time as it has been certified by the Secretary of Education as being true and correct.

(d) For each pupil attending a public school of another district as of September 30, the receiving district shall bill the sending district and the sending district shall pay the tuition charges per pupil on or before January 1 of the fiscal year in which the bill is submitted to the sending district for payment. In the case of pupils attending the public schools of the receiving district for less than a full term, the tuition charge shall be prorated by reference to the period of time during which such pupils actually attended the receiving district’s schools, provided that attendance for part of any month shall be counted as a full month of attendance.

(e) Any reorganized school district sending pupils to the schools of another district shall levy and collect a tax to pay any tuition charges to the receiving district, and such tuition shall be collected by local taxation within the sending district according to the provisions of taxation as set forth in Chapter 19 of this title, except that no referendum shall be required. The sending district shall estimate the amount of, determine the rate for and levy the tax upon the estimate at the time that regular tax levies are announced to the appropriate taxing authorities, and the levy shall be adjusted annually to correct errors in the estimate as provided for in subsection (b) of this section.

So the tuition tax that caused the Appo board to issue a tax warrant last month is based on Section 604, and only Section 604.  There are additional areas where these funds can be used though, as per House Bill 1 from the Delaware 146th General Assembly:

House Bill 1, 146th General Assembly:

b. The following provisions shall apply to the Preschool unit:

v. Districts may use tuition to pay for the local share and excess costs of special education and related services.

b. The following provisions shall apply to the Pre-K – 12 Intensive Special Education (“Intensive”) unit:

ix. Districts may use tuition to pay for the local share and excess costs of the program.

b. The following provisions shall apply for the Pre-K-12 Complex Special Education (“Complex”) unit:

ix. Districts may use tuition to pay for the local share and excess costs of the program.

So districts can use tuition tax to pay  for their local share of special education and excess costs for each specific program.  But not for Basic Special Education students, just Preschool Special Education students, Pre-K-12th grade Intensive Special Education students and Pre-K-12th grade Complex Special Education students.

In Appo’s FY2017 preliminary budget, they state exactly what the Tuition Tax increase of $818,000 will be going towards:

I submitted a Freedom of Information Act request to the Appoquinimink School District last month which I promptly received.  I had not gone through it extensively until now.

View this document on Scribd

I can see the out-of-district placements for students with disabilities going to Special Schools or day or residential treatment centers going up by $100,000.  For FY2016, they spent $2,441,295 for these students.  In FY2017, they are projecting it will go up to $2,570,633.  That seems like a modest projection based on the history with these payments.  I have no qualms with those figures whatsoever.  What I do take issue with though is the appropriation section #99970020/99999999 Needs-Based going up from $7,148,711 to $7,863,582 without any justification for that increase.  As well, we can see their projected amounts for FY2018 which will generate another tax warrant next year but maybe 10% less than this year’s based on their projected numbers.  But Appo did supply two other documents in my FOIA request…

View this document on Scribd

In this document, we see a seven year history with students in the category of Pre-K, Intensive, and Complex.  Also included are the teacher units generated from these increases.  Note the Pre-K units are going down each year.  On the flip side, Intensive and Complex special education students are going up which generates more teaching units as well as services related to those students, such as occupational therapists, speech therapists, and so on.

View this document on Scribd

Now the district was kind enough to give a breakdown of how much went to each category for FY2016.  I do appreciate that.  It does give quite a bit of insight into where they think the funds should go.  Now keep in mind Appo dated this document 7/20/16.

In their projections for FY2017, they based the FY2016 final figure at $9,590,006.  But in this document, it is $9,424,524.26.  That is a difference of $165,481.54.  So they are already way off on their FY2017 budget by having this amount wrong.  This is what they based their tax warrant on, the figure of $9,590,006 for FY2016, and they are basing their FY2017 budgeted projection off that number.  They are already off.  Even in their board meeting Tuesday night, they gave an amount spent as of 6/30/16 on Local Tuition Tax of $9,508,447.03.  This was the part of their board meeting where they approved the monthly budget as of 6/30/16 based on their Citizen Budget Oversight Committee recommendation.  Even they weren’t given the correct amount.  Do I go by a FOIA request, which has to be legal, or their preliminary budget, or the amount their CBOC provided to the board which comes from their CFO?  I’m sticking with the FOIA figure because that has the latest figures, as of 7/20/16.

Now look at the document and where it says “Indirect Cost” for an amount of $276,709.36.  These are funds they transferred out of their tuition tax revenue bucket into another bucket with no explanation of where it went or why.  So adding what they were already off and the “Indirect Cost”, we are up to $442,190.90, which is over half of their tuition tax increase of $818,000 going towards mathematical errors or shifting the money out of the revenue bucket it was supposed to stay in.  You can’t just transfer funds out and call that a legitimate expense.

Which brings us to legal costs.  In FY2017, Appoquinimink spent a total of $171,783.75 in legal costs for the entire district.  But we are expected to believe they spent $124,279.20 out of that figure just for special education legal costs?  Furthermore, should funds spent on legal costs in a special education dispute where a parent is suing the district be counted as legitimate funds to come out of a tax warrant?  Because I can see at least $28,500 going towards that purpose right off the bat.  That means the parents feel the school did not provide a Free Appropriate Public Education for their disabled child.  And if the school is paying those attorneys, that means at the very least there was some type of settlement involved whereby the district paid the opposing attorney as well as their own attorney costs.  As well, we see a payment made to another school covered under legal fees.  This could be a case where a parent sued the district and the district agreed to pay the tuition costs for another school.  That was for $25,575.  So with these VERY questionable legal items Appo feels they can cover under funds generated from a tax warrant, we are looking at another $54,075 in questionable charges in their FY2016 tuition tax expenditures, which brings us up to $496,265.90.    We are now up to over 60% of their $818,000 tax warrant increase.  I won’t even get into the fact they are paying a school nurse under legal fees.  Shall I keep going?

There are legitimate expenses they put on this document.  Teacher salaries and their benefits are okay to have in there.  Related services, which means “Specialists”, according to House Bill 1, does have some caveats:

“(12) Specialists. All related services units are earned at the district or charter school level. Preschool, Basic, Intensive and Complex related services units earned shall be used to support related services needs of students in those units. Districts may use earned units to hire any related services staff necessary or alternatively choose to provide all or part of those services through a contractual arrangement with a public or private agency. When providing services by contract, the dollar value of the contract shall not exceed the authorized salary for a teacher at the Master’s level plus 10 years and employed for a period of 12 months per year as provided for in 14 Del. C. § 1305 of this title, divided by the number of months in the terms of the contract. Partial unit funding is provided based on the dollar value of the unit. Any school district wishing to use funds under the contractual option set forth in this section shall make application to the Department of Education for that use, provided that the State Board may review any objection to the Department decision;”

So, as an example to this, Appo currently has two contracts with Therapy Services of Delaware for three occupational therapists and two physical therapists.  This contract is for FY2017, and I could not find one for FY2016.  But given that they keep projecting up with students who would need these services, it would stand to reason the contract for FY2016 was either similar or less.  But I will operate on the assumption it is similar.  That means, based on the above law, the district can’t pay out more than $60,558.00 for a full-time “specialist” based on the Appo Salary Schedule for a Teacher at the Master’s level plus 10 years.  In the case of Therapy Services, the contracts call for three full-time occupational therapists and two full-time physical therapists.  So they can’t pay more than $302,790.  In FY2016, according to Delaware Online Checkbook, Appo paid Therapy Services $302,442.63.  So it appears they are acutely aware of the laws surrounding these special education services given how very close to the maximum number they could go up to in the contracts.

The reason I brought up a situation where they are doing everything by the book was to illustrate they do know what they are doing.  But for some reason, maybe because of how they are audited by the DOE for certain special education costs, they are able to curtail other things that have a dramatic effect on what they are including in the tuition tax part of their budget.

I could go through more of these, but I believe you get my point.  Appo’s $818,000 tuition tax increase is based on very faulty math, bad accounting procedures, and violations of Delaware state code from their previous fiscal year.  The expenses they are covering under tuition tax don’t hold water with my tests in some areas but in others they do.  Yes, I do own the fact that when I originally wrote about this issues, I seriously questioned where $5 million disappeared to.  But I quickly corrected that a few days later when I found the missing $5 million in related services.  I just didn’t account for the related services amounts in my initial article.  But when I’ve already killed over 60% of your increase of $818,000, and I have barely scratched the surface of your entire tuition tax expenditures for FY2016, I have no doubt that percentage would increase.  So you are NOT justified Appoquinimink School Board of Education, to approve a tuition tax increase costing the Appoquinimink property owners an additional $7.76 per $100 of assessed property values based on this.  As a board, and some have done this in Delaware so they don’t raise the ire of local taxpayers, they can forego or decrease a tuition tax increase based on the projected increase.  But what you can’t do is charge more than what should be the budgeted amount.  Something Longfellow seems to think is the opposite case according to WDEL:

He said, not only is the district justified to increase the tuition tax based on enrollment, Appoquinimink isn’t even increasing the tax to the fullest extent permitted.

Would I expect the Appoquinimink School Board to know these facts?  Not really.  Unless you really do some digging like I have, you won’t just find these things on a piece of paper looking at it.  But should Longfellow and Burrows know these things?  Absolutely.  Let’s not forget, their board approved their FY2017 Preliminary Budget and the tax warrant before they approved a $500 increase for administrators in the district at their July board meeting.  I called that a sleight of hand on Longfellow’s part.  I believe he knew exactly what he was doing.  But the board just skimmed right past that part.

“It was just a case of someone not understanding everything,” Board President Richard Forsten said to WDEL after the meeting.

I will give Forsten that.  I knew something was wrong and I made some incorrect assumptions.  But my gut instinct still told me something was wrong even after I found my error.  And then I found Appoquinimink’s errors.  To be fair, I received the FOIA request two days after I requested it.  But did I get everything I asked for in the FOIA request?

For the most part, I did.  But what the FOIA did not cover, and no one has been able to answer, is the breakdown of funds allocated in the categories of related services for intense and basic, as well as allocations for occupational therapists, physical therapists, speech therapists and so on.  By lumping so much of their special education costs into very broad categories of “consultants”, “other professional service” or “medical services” would not give any member of the public the ability to see exactly what is going towards tuition costs.

Furthermore, neither Burrows or Longfellow ever replied to my email requests to discuss these matters after my original article on July 14th.  Not one single email, phone call, or response.  Until their board meeting last night.

Part of the blame for this lies with the state.  We have a Division of Accounting within the Department of Finance.  We have a State Auditor.  We have an Office of Management and Budget.  We have a General Assembly.  They should all be keeping track of these things and providing oversight into not only what our schools are spending money on, but how they are spending money.  When I hear a Board President state transferring over a quarter of a million dollars out of an account earmarked for only certain things related to special education as a “legal maneuver”, that concerns me.

“All the numbers are there and they’re all justified, its just that you have to know what you’re looking for,” said Forsten.

Are they Mr. Forsten?  I beg to differ…

But the biggest concern I have is the extreme lack of oversight from the Delaware Department of Education in these matters.  When it comes to special education funding, especially tuition tax expenditures, they should be looking into these matters.  It isn’t a question of “may”, it is a question of “shall” according to Section 352 of HS1 for House Bill 225, the budget bill for FY2016.  While this mostly concerns out-of-district placements, the last line says it all…

I’m fairly certain that special education lawsuits should NOT be covered in tuition tax payments.  Nor should Indirect Costs going out of this fund.  And tax warrants should be based on a specific amount based on the prior year spending, not the highest of three amounts (and most likely the most inaccurate amount).  I look forward to their response to this article.  Will I get an email, a phone call, or another special section of their board meeting?  Or none of the above?

Appo Update On Tax Warrant/Special Education/$5 Million Article

On Thursday, I published a very controversial article surrounding the Appoquinimink School District.  To say I got some heat for it would be putting it mildly.  After I wrote the article, I did reach out to the district for comment.  I emailed Superintendent Matt Burrows, CFO Dr. Charles Longfellow, and their public information officer, Lillian Miles.  The only response I received from the trio was an out-of-office reply from Burrows:

What I found ironic about this was the part which states “suspected spam”.  Many wondered why I didn’t contact the district first with my findings and ask them about it.  Last year, after the opt out bill (House Bill 50) first came out, I emailed all the superintendents and charter chiefs in the state.  I had valid concerns about schools refusing parent opt out requests or bullying parents about it.  Some parents received veiled threats concerning their child’s ability to attend school during testing, while others received letters from a school district stating they had to acknowledge they were violating the law, sign it, and send it back.  That came from Appoquinimink.  When the Delaware PTA revealed this at the first opt out town hall last year, I immediately jumped on it and contacted the district.  I spoke with Lillian Miles.  I advised her the letter was potentially illegal based on the law it cited which did not apply to parents in any way whatsoever.  She advised me she would look into it and I never received a response back from her.  A few Superintendents responded to my email about the opt out situation.  Matt Burrows was not one of them.

Flash forward a year to the 2016 Smarter Balanced Assessment season.  Many parents reported getting a very similar letter this year.  I once again contact Lillian Miles who informed me if any parent comes to me to direct them to speak to the school principal.  I advised her I would not do this and I was advocating for their rights.  She seemed to take offense to this and the matter didn’t come up again.

Towards the end of May, I received information concerning “data walls” at various Delaware schools where student test scores were displayed in classrooms or hallways, with the good students on top and the low-scoring students on the bottom.  I knew Appoquinimink, based on multiple (double digit) reports I received from sources was one of the biggest abusers of this practice.  Data Walls are a part of the “Leader In Me” program which Appo is a huge proponent of.  I know one very large district who had some minor issues with it directed all teachers to take down their walls as a result of my article.  I did advise, in an email to all the superintendents and charter chiefs, I would file FERPA complaints if I found out they didn’t take down their invasive data walls.  Unfortunately, that was by the end of the school year when teachers would be taking down anything on the walls in their classrooms anyways so I wasn’t able to move forward on my promise.  Once again, Burrows never responded.

I’m not sure why my email to him yesterday was “suspected spam” as I never received that reply from him in the past (or any reply for that matter).  I linked articles in emails to superintendents in the past, so that would not have triggered a potential spam.  Perhaps he marked the last email I sent him about the data walls as spam.  I have no way of verifying that unless he tells me.

In the meantime, several people informed me of things going on in the district.  Many teachers, within the district and around the state, advised me Appo is well-known for an almost “poaching” of the best teachers in the state.  The district only seems to want seasoned teachers and doesn’t hire too many novice teachers.  While this might be good for students, it is also a huge financial drain on the district.  With tenured teachers and those with years, sometimes decades, under their belt, this costs more money in salaries.  And with those high salaries, comes the very big costs of benefits and pensions.  In FY2016, Appoquinimink spent $37.38 million dollars on teacher salaries alone.  While I am not able to verify this because all it says are “salaries”, that number could go up to $39.23 million because under their related services buckets for “regular/basic”, “intensive”, and “complex”, there is an additional $17 million under “salaries”.  But this section of their expenditures could also cover occupational therapists, psychologists, speech and hearing, specialists & coordinators, physical therapy and speech therapists.  Only Appo and a couple of other districts do not code those correctly in the state accounting system.  But Appo also paid $750,000 in “other professional service”, so some of those could fall under that bucket.  We simply don’t know.

What I do know, and can now confirm, is where the alleged $5 million went to.  In their FY2016 Preliminary Budget, the district gave a presentation to their board which showcases exactly what the tuition funds go towards:

So I was able to solve that mystery with some help digging around for information.  And we also know how much they came into the year carrying over from the prior year.  But this the confusing part.  It shows a projected shortfall of $660,603.00 over the year.  Now what we do know,  based on Thursday’s article comparing the district’s tuition costs for in-state and out-of-state were over $2.9 million for FY2015 and a bit over $3 million for FY2016, with a difference of over $48,000.00.  So this $660,603 shortfall they were expecting was, most likely, not coming from their out-of-district costs.  Which leaves the section called “Needs-Based”.  This covers their district costs for special education over what the state pays them.  In Delaware, this is all based on the student enrollment as of September 30th.  I’m not going to sit here and say this is a fair system at all.  This is very early on in the school year, and even if a parent requests special education services through an IEP on the first day of school, chances are very good that child, if they qualify, won’t have a signed IEP by September 30th.  This means the district has to cover those costs.  For every special education student a school has, they earn extra teaching units for these students based on the severity of their disability.  These three sections are basic, intensive, and complex.  I wrote about this system two years ago:

Basic Special Education units are determined by eligibility of special education for students in grades 4-12 and they must not be considered intensive or complex. Students in this group receive one unit for every 8.4 students.

Intensive units are based on a need of a moderate level of instruction. This can be for any student with an IEP from Pre-Kindergarten to 12th grade. As well, there must be supports for health, behavior or personal issues. The student must have an adult facilitating these supports with a ratio of 1:3 to 1:8 for most of their education. The student must be in the mid-range for use of assistive technology and also need support in the areas of a school nurse, an interpreter, an occupational therapist, or other health services. These students would also qualify for extended year services (ESY), and may have to utilize services outside of the school such as homebound instruction or hospital services. On their IEP, these students may have accommodations outside the norm, which should include adaptations to curriculum to best support their needs. Students here get one unit for every 6 students.

Complex Special Education units are determined by severe situations that require a student to adult ratio of 1:1 or 1:2. Most autistic children should fall into this category. They must receive a high level of instructional, behavioral, personal and health supports. Assistive technology needs to be utilized at an increased level for these students. ESY is a must, as well as a high level of homebound instruction or hospital services, interpreters, occupational therapists, or services from the school nurse. Unit funding is provided as one unit for every 2.6 students.

If you notice, there are NO additional units for basic special education students in Kindergarten to 3rd grade.  This is something that would have changed had our General Assembly passed State Rep. Kim William’s House Bill 30 which she fought for during most of the 14

8th General Assembly.  So who covers those costs?  The district or charter school.  But since IEPs continue from year to year, any district or charter knows this and should budget for it.  One thing to keep in mind.  These special education units are not added on to existing units.  They are separate from regular education students.  What this does not mean though is that every special education student receives a special education teacher in every class in a full inclusion environment.  Some schools do this differently and there is little to no consistency with this.

Where this gets interesting is the article I put up about Red Clay’s tuition tax increase.  Their 2 cent increase.  Keep in mind, compared to Appoquinimink, Red Clay has, as of last September 30th, 2,169 special education students.  They have 156 Pre-K, 302 in K-3 Basic, 1,104 in 4-12 Basic, 343 in Intensive, and 264 in Complex.  Their complex number is three times that of Appo’s.  They have more in every single category.  And yet, their needs based funding increase for their tuition tax was part of the $815,000 they talked about at their board meeting last week.  Red Clay publicly announced that portion of their tuition tax increase was $250,000.00.  That is a $565,000 difference.  Since we know Appo didn’t spend a huge amount more for out of school placements between FY2015 and FY2016, are we really supposed to believe they need all those extra funds to cover this gigantic increase for special education students?  This is why I was angry the other day.  I knew something didn’t smell right the second I saw the WDEL article.

A commenter from the Appo article stated the board discussed how the board was shocked when they got the numbers in from other districts.  I listened to all their board recordings for this year, and I only found one where they specifically talked about this issue, from their February 23rd board meeting.  I painstakingly transcribed that part of the board meeting.  And I do mean painstakingly.  Appoquinimink’s board voted last year to record their meetings and put them up on their website.  Which I am grateful for, but for the love of all that is holy, please talk into the microphone.  Presenters do great with this, but the actual board members are very difficult to hear many times.  Governor Markell signed House Bill 61 last month, so all public school boards (including charters) will have to start doing this when school starts.  That doesn’t mean you don’t talk into the device that, you know, actually records the meeting.

Here is the conversation.  And I do apologize in advance.  I don’t know which name belongs to the male and female board members that discussed this with the district’s CFO, Dr. Longfellow.

Female Board Member: I have another question about the tuition.  So, for tuition to outside districts, how comfortable are you with the way that they are going to charge us every year?  Cause we’ve had issues with Christina.  Is it something that seems like when the bills finally come in they make sense, or?

Dr. Charles Longfellow: I don’t see the details, even if I ask for the details.  I’m given numbers, I’m trying to say this the right way.  I don’t know if they’re the right numbers or not.  They seem reasonable, but by law we have to pay what… when they send a bill to the Department of Ed and the Secretary of Education,  we asked for detail, we were given detail.  That’s as far as we could go with it, so, uhm, that’s the process.  Through legislation it could change but that’s where we are.

Female: I know I ask this question every year…

Longfellow: And that’s fine

Female: Are we allowed to request that the DOE audit those kinds of things?

Longfellow: Well they do get audited but not to the detail of what expenses go into what we are billed. They have to track their expenses separately.  What they do is take everything they’ve spent on the program, locally, cause the state contributes money too.  They can’t charge us what the state pays them.  But for all the local dollars that are paid for the programs, they take the number of students that go there, divide it by the number of students we send there, and that’s what they bill us.  That’s also been something we’ve said before, that, autism is, you know, a spectrum.  So there are some students that need a lot of resources, there are some students that don’t need as many resources.  Yet the bill that we get is the same for every kid.  So what we have been doing is, there was a time, when we thought about, what can we do to serve students in district that don’t have a larger amount of needs.  There were some parents saying, “It’s the Delaware Autism Program.  I want my kid going there.”  So we would talk to them and find out if that was truly the best thing for them.  Is Dr. McAuley here? (No).  She could probably give a little more background on that.  We did that but that was a couple years back.

Female: It’s always been on my radar since that giant adjustment a couple years ago.

Longfellow: Yeah, I have the fuzzy, but not the warm and fuzzy. Let’s just put it that way.

Male Board Member: Our projected shortfall is $702,000, but how much is the difference of what we thought the shortfall was going to be and what it actually is? Is it a case that the tuition costs are $702,000 more than we thought?

Longfellow: We’re not there yet. We’re still working on projections on all this.  Cause we don’t have our bills from those other districts.  We don’t have our, uhm, final count from some of the other outside placements. 

Male: Cause I’m looking at the numbers you sent us. The tuition tax revenue is estimated in the final budget at $8.5 million. 

CFO: Right.

Male: But then I look to the final budget for expenses, and it has tuition of $9.1 million.  But in the original budget, it shows $9.01 million so It looks like it’s $90,000 more.  Either way, whether it’s $9.1 million or $9 million is more of a tuition tax we’re paying. 

Longfellow: Yeah, yeah, we had a starting balance here, so that’s where that comes in.

Male: So one of the reasons (inaudible)

Longfellow: Let me take a look, because… We might have had to raise it.  I’ll have to take a look at the history here. 

Female: I think we did.

Longfellow: Yeah, we did raise it. 3.6 cents this year. 

Female: That’s in July. We voted on it in July.

Longfellow: Well the bills are due to the Department of Ed in January, so they should be down there. So soon as I get them back from DOE the districts will bill me and that’s when I’ll know.  So we have some preliminaries.  But there is always a process where they send us a bill and I say give me a list of students behind the bill.  They send the list.  Our special education department takes a look and says this kid doesn’t belong to us.  You never told us about this one, this one’s a ward of the state so the state has to pay 100%.  It’s just some back and forth.  So typically, we’ll know for most of them by April, but that’s hopeful.

Male: It’s an 80/20 split, right, or 75/25 split, the state pays their share and we pay our share…

Longfellow: Well they earn units, the programs earn state units for the students that are in their programs.  So it’s not really an 80/30 split.  It could be they’re earning units from the state but they’re charging us for, say, the local side of the salaries for the staff they have in place and the students have some severe needs for related services or additionals resources or something too, so it’s not really a straight rate… that goes back to what Ms. Wright saying “How do we know what we’re actually being billed for?”

Male: So then what happens. I know we talked about how 167 kids we got on September 30^th started with us, those special needs kids, so are we stuck with being the state side of their special ed classes?

Longfellow: Yes. And we have to pay the local side of their special ed costs out of what resources we have.  That’s part of, when it went up $90,000, that’s part of what’s here. 

Notice how they don’t really discuss why they are sending complex special education kids to other districts, but more of the money aspect of it?  I know, a board needs to know what is going on financially.  Which is my whole point.  I’ve seen way to many boards that just take the word of everything told to them.  They see a paper with numbers on it, might question a little bit, and leave it at that.  There was no discussion around what the nature of the shortfall was.  Instead, they blamed it on Christina instead of questioning the actual shortfall.  It’s a nice way to dance around the true subject.  Where is their special education money going?