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What options may a charter school use to meet its responsibilities to provide a free appropriate public education, as required by state and federal law, to a student with a disability?As provided in MCL380.1751 of the Revised School Code:The board of a local school district [or charter school] shall provide special education programs and services designed to meet the individual needs of each student with a disability in its district on record under section 1711 for whom an appropriate educational or training program can be provided by the intermediate school district special education plan, in either of the following ways or a combination thereof:a. Operate the special education program or service.b. Contract with its intermediate school board, another local school district board, and adjacent school district board in a bordering state, the Michigan Schools for the Deaf and the Blind, or the Department of Health and Human Services or with an agency approved by the superintendent of public instruction. The intermediate school district where the local school district [or charter school] is located shall be a party to each contract, even if the intermediate school district does not participate in the delivery of the program or services.Pursuant to Attorney General Opinion No. 6915 (1996), charter schools are not required directly to employ teachers. Instruction at charter schools is to be provided by certificated teachers (exception-refer to Section 380.505) however; charter schools may contract with outside companies for the provision of instructional services. Therefore, “a public school academy is not subject to Section 380.1231 of the Revised School Code, which requires the board of a school district to ‘hire and contract with qualified teachers’ and it may contract with an outside company for the provision of instructional services by employees of that company.”
In addition to the methods listed above, a charter school may contract with an agency approved by the State Board of Education for the delivery of ancillary or related professional education services.
If a charter school chooses to hire staff or contract with a private agency for “services,” is the charter school entitled to apply for reimbursement under the State School Aid Act (MCL 388.1651a, special education funding) and the intermediate school district special education millage?
Yes. A charter school is considered to be a local school district under
MCL 388.1603(5) of the State School Aid Act. It is considered a local district to be included in the intermediate school district plan for special education programs and services. Therefore, charter schools have the same right to participate in state school aid and intermediate school district special education funding as any other local school district, by the provisions to the intermediate school district plan for special education programs and services.
If a charter school is entitled to intermediate school district special education millage funds, is the charter school held to the same limitations as other local districts, i.e., the cap on student-staff ratio used for certain categories of programming?
Yes. For purposes of special education services, a charter school is bound to the same requirements as other local constituent districts served by their respective intermediate school districts. The charter school, like any other constituent district, must be recognized in its respective intermediate school district plan for special education programs and services to participate.
Is a charter school eligible for Individuals with Disabilities Education Act funds?
Yes. Federal special education funds under the Individuals with Disabilities Education Act (IDEA) are granted to the intermediate school districts. These funds are distributed to constituent local school districts according to the intermediate school district plan for special education programs and services, which must comply with state and federal regulations controlling the use and distribution of the funds. The intermediate school district plan for special education programs and services is developed cooperatively with local constituent school districts, including charter schools.
If a charter school is eligible for intermediate school district special education millage and Individuals with Disabilities Education Act Funds, must a charter school follow the same requirements as other local educational agencies for obtaining funds, e.g., the filing of forms and applications?
Yes. A charter school must follow the same requirements as other local educational agencies. Both state and federal funds are appropriated under Article 5 of the State School Aid Act of 1979, as amended, MCL 388.1651a et seq.
- Article 5 of the State School Aid Act indicates the funds may be used to reimburse districts and intermediate school districts for special education programs, services, and special education personnel.
- Article 5 of the State School Aid Act allocates funds for:
- Special education programs and services as defined in Article 3 of the MCL 380.1701, et seq.
- A total of salaries and other compensation paid to approved special education personnel. Michigan Administrative Rules for Special Education (MARSE) Rules 340.1771 through 340.1799g provide personnel approval criteria.
- MCL 388.1658 of the State School Aid Act, allocates funds to districts and intermediate districts for providing specialized transportation services, as determined by MDE, for pupils in special education programs and services. Specialized transportation services are defined in Rule 388.371 of the Michigan Administrative Code Rules governing State Aid for Transportation of School Children.
Must a charter school adhere to all provisions of IDEA, the Michigan Revised Administrative Rules for Special Education (MARSE), the Family Education Rights and Privacy Act (FERPA), and other state and federal statutes?
Yes. The IDEA considers the entire state. If the state (as a whole) receives federal funds, then all entities of the public education system are responsible for complying with IDEA provisions, including ensuring that each eligible child with a disability is provided a “free appropriate public education.” Michigan complies with the IDEA in its implementing regulations. A charter school is required to adhere to Michigan statutes and rules for special education, as well as the federal requirements.
The Family Education Rights and Privacy Act (34 CFR Part 99) (FERPA) has broader applicability than special education; it applies to all public educational entities and their students, whether or not special education is at issue. The purpose of FERPA is to protect the confidentiality of student educational records. FERPA is a federal law that affords parents the right to have access to their children’s education records, the right to seek to have the records amended, and the right to have some control over the disclosure of information from the records. Educational institutions shall not release educational records to non-school employees without the parents’. FERPA does permit schools to work with juvenile justice system agencies. Failure of an educational agency or institution to comply with FERPA can result in loss of federal funding.
Section 504 of the Rehabilitation Act of 1973, as amended, P.L. 93-112, requires that “no qualified handicapped person shall, by handicap, be excluded from participation in, be denied the benefits from Federal financial assistance….” The Office for Civil Rights of the U.S. Department of Education enforces the law prohibiting specific discriminatory activities. The law applies to elementary and secondary, as well as postsecondary schools. The Act was reauthorized in 1998 with amendments and added links to the Workforce Investment Partnership Act of 1998. The Rehabilitation Act Amendments of 1998 included extensive links between vocational rehabilitation agencies and state workforce systems.
Section 504 also includes “hidden disabilities,” such as physical and mental impairments that are not clear to others (i.e., learning disabilities, diabetes, epilepsy, heart disease, and chronic illness).
Is the intermediate school district required to monitor special education programs and services?
Yes. A charter school is identified in statute as a local public school district and has the same rights and responsibilities as any other school district. MDE is required to monitor local and intermediate school districts for compliance with the IDEA and with Michigan’s Administrative Rules for Special Education. This activity includes a charter school.
The intermediate school districts are an integral part of the monitoring process. As such, intermediate school districts must monitor a charter school to ensure their compliance with pertinent special education requirements.
To what extent is an intermediate school district responsible for charter schools serving pupils whose parents reside outside the intermediate school district where the charter school is located?
For special education purposes, the charter school is a constituent district of the intermediate school district in which it is located. The intermediate school district has the same responsibility to the charter school as it does to any other constituent district. It is not unusual for a public school district to serve pupils from other districts, including pupils whose parents live in another intermediate school district. The intermediate school district has the same obligation to pupils whose parents live elsewhere as it does to any other pupil legally enrolled by a constituent district.
Section 51a (14) of the State School Aid Act (MCL 388.1651a(14)) further clarifies:
(14) If a public school academy that is not a cyber school, as that term is defined in section 551 of the revised school code, MCL 380.551, enrolls under this section a pupil who resides outside of the intermediate district in which the public school academy is located and who is eligible for special education programs and services according to statute or rule, or who is a child with a disability, as that term is defined under the individuals with disabilities education act, Public Law 108-446, the intermediate district in which the public school academy is located and the public school academy shall enter into a written agreement with the intermediate district in which the pupil resides for the purpose of providing the pupil with a free appropriate public education, and the written agreement must include at least an agreement on the responsibility for the payment of the added costs of special education programs and services for the pupil. If the public school academy that enrolls the pupil does not enter into an agreement under this subsection, the public school academy shall not charge the pupil's resident intermediate district or the intermediate district in which the public school academy is located the added costs of special education programs and services for the pupil, and the public school academy is not eligible for any payouts based on the funding formula outlined in the resident or nonresident intermediate district's plan. If a pupil is not enrolled in a public school academy under this subsection, the provision of special education programs and services and the payment of the added costs of special education programs and services for a pupil described in this subsection are the responsibility of the district and intermediate district in which the pupil resides.
Is there a need to certify charter school students for special education services and identify them as such on the enrollment count if the charter school is not planning to claim additional state funding or federal funding?
If “certify” refers to the process of identifying children who are suspected of having a disability under state or federal law, the response is yes. This is called Child Find under the federal regulations. There is a need to complete the “child find” requirements irrespective of application or claim for additional state or federal funding.
The State of Michigan is responsible for ensuring a free and appropriate public education for every student with a disability who is enrolled in its public school system. Since a charter school is a public school, it is bound by the same requirements as other public intermediate and local school districts within the state. The determination of a charter school to seek no state or federal funds related to special education does not exempt it from this obligation.
If a charter school contracts with a private entity to provide speech, psychological, and social work services: (a) must the credentials of the providers be the same as those employed by public schools in general, and (b) must the charter school submit its personnel inventory to the intermediate school district?
This response is intended to refer only to professional personnel related to “special education programs or services.”
In response to part “(a)” of the question, the answer is yes. Standards are articulated in the Administrative Rules for Special Education and the rules governing different professional specialties.
In response to part “(b)” of the question, to meet federal reporting requirements prerequisite to receipt of federal funds requires reporting information about public school students and professional personnel to the federal government on an annual basis. This information is collected through the Michigan Department of Education’s Registry of Education Personnel (REP). REP data are collected semi-annually in December and June. This process is implemented through the local school districts procedures for data collection. If there are students with individualized education programs enrolled in a charter school, then the information about special education programs or services to those students must be reported as part of the “December One Count” through the Michigan Compliance Information System (MICIS).
For further information regarding special education, you may contact MDE’s Office of Special Education or call (833) 633-5788.