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The Department of Education’s mission is to promote student achievement and preparedness for global competitiveness 

by fostering educational excellence and ensuring equal access.

Letter

UNITED STATES DEPARTMENT OF EDUCATION

OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES

THE ASSISTANT SECRETARY

August 15, 2019

Stephen Perla

Superintendent of Schools

Diocese of Fall River

Catholic Schools Office

373 Elsbree Street,

Fall River, Massachusetts 02720

David Perda, Ph.D.

Superintendent of Schools

Diocese of Worcester

49 Elm Street

Worcester, Massachusetts 01609

Sister Andrea M. Ciszewski, FSSJ

Superintendent of Schools

Diocesan Schools Office

63 Elliott Street

Springfield, Massachusetts 01102-1730

Nancy Kriegel

Director

Initiative for Day School Excellence

Combined Jewish Philanthropies

126 High Street

Boston, Massachusetts 02110-2700

Ariella Hellman

Associate Director of Government Affairs

Jewish Community Relations Council of Greater Boston

126 High Street

Boston, Massachusetts 02110-2700

Dear Mr. Perla, Dr. Perda, Sr. Ciszewski, Ms. Kriegel, and Ms. Hellman:

This letter responds to the October 27, 2017 correspondence you submitted to Betsy DeVos, 

Secretary, U.S. Department of Education (Department), pursuant to 20 U.S.C. 1412(a)(10)(A)(v) 

of the Individuals with Disabilities Education Act (IDEA).1 In your letter you appealed the final 

decisions of the Massachusetts Department of Elementary and Secondary Education (DESE) on 

1 The applicable regulatory provisions are found in 34 C.F.R. § 300.136.
Page 2 — Mr. Stephen Perla, Dr. David Perda, Sr. Andrea M. Ciszewski, Ms. Nancy Kriegel, 

and Ms. Ariella Hellman

complaints you filed against the State educational agency (SEA) and 25 local educational 

agencies (LEAs) related to compliance with certain IDEA requirements. Specifically, you stated

that you are dissatisfied with the SEA’s final decisions on these complaints because the SEA: 

(1) failed to consider the child find allegations in the complaints; (2) limited the scope of its 

review to a one-year period; (3) did not require LEAs to produce evidence that the required 

amount of IDEA Part B funds were spent on equitable services and failed to address “supplement 

but not supplant” and LEA “maintenance of effort” requirements; and (4) did not require 

appropriate corrective actions.

The Office of Special Education and Rehabilitative Services (OSERS) has completed its review 

of the SEA’s decisions on your complaint and our decision is the Department’s final action in 

this matter. We regret the delay in providing you with the written results of our review.

The enclosure to this letter includes relevant background information and a description of the 

procedures OSERS followed in its review. The enclosure also provides findings of fact, analyses,

conclusions, and any corrective actions required to address your allegations. 

By copy of this letter we are notifying DESE of OSERS’ decision in this matter. If you or DESE 

have questions or would like to request technical assistance related to implementation of the 

required corrective actions, please contact Dwight Thomas, OSEP’s State Lead for 

Massachusetts at 202-245-6238 or by email at Dwight.Thomas@ed.gov.

Sincerely,

/s/

Johnny W. Collett

Enclosure

cc: The Honorable Charlie Baker

Governor of Massachusetts

Russell Johnston

Senior Associate Commissioner
Appeal of Resolution of Complaints by the 

Massachusetts Department of Elementary and Secondary Education

BACKGROUND

This matter in general concerns the Individuals with Disabilities Education Act (IDEA), 20 

U.S.C. § 1400 et seq., and its requirement that a “free appropriate public education is available to 

all children with disabilities residing in the State between the ages of 3 and 21.” 20 U.S.C. § 

1412(a)(1)(A). IDEA requires that children with disabilities who are parentally-placed in private 

schools and are in need of special education and related services, are identified, located, and 

evaluated, and are provided such services consistent with the requirements. 20 U.S.C. § 

1412(a)(3) and 20 U.S.C. § 1412(a)(10). The specific nature of this matter concerns the 

application of IDEA’s equitable services provisions to parentally-placed children with 

disabilities in private schools in the State of Massachusetts.

By letter dated October 27, 2017, certain private school officials in Massachusetts (hereinafter, 

the complainants) submitted a complaint to Betsy DeVos, Secretary, U.S. Department of 

Education (Department), pursuant to section 612(a)(10)(A)(v) of IDEA, 20 U.S.C. §

1412(a)(10)(A)(v). The Secretary has delegated the responsibility to respond to the complaint to 

the office of the Assistant Secretary for Special Education and Rehabilitative Services (OSERS). 

The complainants stated that they were dissatisfied with the Massachusetts Department of 

Elementary and Secondary Education’s (DESE’s) resolution of 25 complaints the complainants 

had previously filed regarding certain school districts, hereinafter referred to as local educational 

agencies (LEAs).

2 These complaints alleged noncompliance with the requirement that LEAs 

conduct timely and meaningful consultation with private school representatives and 

representatives of parents of parentally-placed private school children with disabilities, in 

accordance with 20 U.S.C. § 1412(a)(10)(A)(iii) and 34 C.F.R. § 300.134. 

The complainants also stated that they were dissatisfied with DESE’s resolution of their 

complaint in which they alleged that DESE, as the State educational agency (SEA) had failed to 

ensure its LEAs comply with IDEA as required by 20 U.S.C. § 1412(a)(11) and 34 C.F.R. 

§§ 300.149 and 300.600.

DESE’s Resolution of Complaints Against LEAs: On June 28, 2017, DESE received 

complaints from the complainants alleging that 27 school districts had failed to comply with 

2 The IDEA requirements at issue in this complaint apply both to the SEA (also referred to as DESE) (20 U.S.C. 

§ 1412 and 34 C.F.R. § 300.100) and to LEAs (20 U.S.C. § 1413(a)(1) and 34 C.F.R. § 300.201). DESE also refers 

to the school districts as LEAs. See February 8, 2018 letter from DESE to Secretary DeVos, (hereinafter, SEA 

Response #1).
Page 2 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

certain requirements of IDEA. Specifically, the complainants alleged that each of the LEAs

failed to conduct timely and meaningful consultation as required by 20 U.S.C. 

§ 1412(a)(10)(A)(iii) and 34 C.F.R. § 300.134. The complainants subsequently withdrew their 

complaints against two of the LEAs.

DESE reported that its Problem Resolution System Office (PRS) resolved the complaints using 

the same procedures it has established to resolve IDEA State complaints filed under 34 C.F.R. §§

300.151-300.153. On September 28, 2017, DESE issued Letters of Finding to the complainants 

and each of the 25 LEAs. DESE found that all LEAs were out of compliance with one or more 

IDEA requirements related to parentally-placed private school children with disabilities. DESE’s 

written decision on the complaint for each LEA included findings of fact and conclusions and

required corrective actions to address the identified noncompliance.

Upon review of the LEAs’ implementation of the actions required by PRS’s Letters of Finding,

DESE determined that additional corrective action was necessary. See DESE’s Response #1, 

page 12.

DESE’s Resolution of the Complaint Against Itself: In their June 28, 2017 complaint to DESE 

the complainants alleged that “DESE has failed to carry out its obligations to parentally-placed 

private school students with disabilities by failing throughout that time [2005 to the present] to 

have in effect policies and procedures to ensure that the LEAs meet their obligations to such 

students.” See Complainants’ June 28, 2017 complaint to DESE, Program Quality Assurance 

Services, page 1. The complainants noted that “DESE’s failure to guide LEAs properly can be 

traced to its own lack of understanding of the provisions relating to equitable participation for 

private school children.” 

The complainants alleged DESE had failed to carry out its oversight of the LEAs’ compliance 

with requirements related to: (1) timely and meaningful consultation; (2) providing an accurate 

count and report of parentally-placed private school children with disabilities; (3) conducting an 

accurate calculation of the proportionate share of IDEA Part B funds that must be expended for 

parentally-placed private school children with disabilities; and (4) ensuring LEAs expended the 

required amount of IDEA Part B funds on children with disabilities placed in private schools by 

their parents.

To remedy the alleged noncompliance, the complainants requested that DESE conduct a 

Statewide audit to determine the impact of the alleged violations from 2005 to the present, 

provide compensatory services for the “wrongful withholding” of equitable services to 

parentally-placed private school children with disabilities, appoint a Statewide private school 

ombudsman to help resolve concerns about appropriate implementation of IDEA’s equitable 

services provisions, and facilitate collaboration between LEAs and private school officials. See 

complainants’ October 27, 2017 complaint to the Secretary, pages 11–12.
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and Secondary Education

In its September 28, 2017 Letter of Findings, PRS resolved the allegations made against DESE. 

PRS concluded DESE did not fully implement the requirements of 34 C.F.R. §§ 300.149 and 

300.600 to ensure the LEAs complied with the consultation requirements in 34 C.F.R. § 300.134 

and ordered the LEAs to take appropriate corrective action. In addition, although DESE had 

issued updated guidance to its LEAs to ensure an accurate count and record of parentally-placed

private school children, PRS determined that additional corrective action was necessary. 

With respect to ensuring LEAs accurately calculate the proportionate share of IDEA Part B funds 

and expend the required amount of these funds, PRS referenced the Department’s Office of 

Special Education Programs’ (OSEP’s) May 13, 2016 monitoring report that included a finding 

on these same matters.3 PRS’s Letter of Findings noted that as a required corrective action to 

address OSEP’s finding, DESE had revised its policies and procedures for calculating the 

proportionate share, and those policies and procedures were submitted and approved by OSEP in 

an August 8, 2017 letter. PRS concluded that, based upon DESE’s action and OSEP’s approval 

of the revised policies and procedures, along with a revised technical assistance document 

provided to its LEAs, DESE had “corrected its partial noncompliance with 34 C.F.R. §§ 300.129, 

300.149, 300.600, as they relate to 34 C.F.R. 300.133....” See PRS’s September 28, 2017 Letter 

of Findings to DESE, page 8.

The complainants disagree with PRS’s resolution of their complaints and have requested that the 

Secretary review DESE’s decisions and require additional corrective action to remedy the 

identified noncompliance.

REVIEW PROCEDURES

1. By a November 28, 2017 letter to the complainants, OSERS acknowledged receipt of the 

complaint and indicated that it had initiated a review of the information provided with the 

October 27, 2017 submission. OSERS provided DESE with a copy of its November 28, 2017 

letter to the complainants and indicated that it would be requesting appropriate 

documentation from DESE in the future. 

2. OSERS notified DESE on January 8, 2018, that it must provide a written response to each of 

the allegations included in the complainants’ complaint to the Department. OSERS also 

identified specific documents it had determined were necessary to resolve the complaint and 

invited DESE to submit those documents and any other documentation it believed would 

3 In its May 13, 2016 fiscal monitoring letter, OSEP found the State did not have procedures to ensure that LEAs 

spend the required amount of their section 611 and section 619 subgrants on providing special education and related 

services to parentally-placed private school children with disabilities in accordance with the requirements in 34 

C.F.R. § 300.133 and Appendix B of 34 C.F.R. Part 300. As a result, the State was required to submit revised 

policies and procedures demonstrating compliance with the regulations in 34 C.F.R. § 300.133 and Appendix B. On 

August 15, 2016, the State submitted its revised policies and procedures. OSEP reviewed the State’s policies and 

procedures and closed this finding in an August 8, 2017 letter to DESE.
Page 4 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

demonstrate that DESE properly resolved the complainants’ complaints against the LEAs 

and DESE. The January 8, 2018 letter set out the procedures and timelines for each party to 

the complaint to submit information for OSERS’ consideration. OSERS also notified DESE 

that the complainants would be given the opportunity to provide a joint written response to 

DESE’s written response and documentation. OSERS’ letter stated that each party was 

required to provide the other party with a copy of any information submitted to OSERS. By 

copy of its January 8, 2018 letter to DESE, OSERS notified the complainants of this 

information.

3. On February 8, 2018, DESE submitted its written response to the allegations and 

accompanying documentation to OSERS and copied the complainants on its submission for 

review as required by OSERS’ January 8, 2018 letter.

4. On February 9, 2018, DESE submitted documentation related to OSEP’s fiscal monitoring of 

the State that is relevant to the issues in this complaint.

5. On February 9, 2018, the complainants requested an extension of the due date to provide a 

response to DESE’s February 8, 2018 submission. On February 12, 2018, OSEP responded 

to that request and granted a one-week extension to the due date.

6. On February 13, 2018, the complainants requested documentation of the PowerPoint slides 

referenced in DESE’s February 8, 2018 response. On that same date, DESE provided the 

requested information to OSEP and the complainants. 

7. On February 16, 2018, DESE submitted a copy of a status report on the implementation of 

corrective actions required by PRS’s resolution of the complaints. DESE also notified OSEP 

that the LEA responses to the complaints provided with the complainants’ October 27, 2017 

complaint to the Secretary were incomplete. DESE offered to provide OSEP with complete

copies of the LEAs’ information.

8. In a February 21, 2018 email, OSEP confirmed receipt of DESE’s February 16, 2018 

communication and accompanying documents and requested that DESE provide a copy of 

the LEAs’ complete responses to the complaints that were filed with DESE. In a February 

27, 2018 telephone conversation with State officials, OSEP reiterated its request that DESE 

provide OSEP with complete copies of the LEAs’ responses to the complaints the private 

school officials had filed against them.

9. On March 6, 2018, OSEP received the complainants’ response to DESE’s February 8, 2018 

submission, including the document, “Private School Status Report on District Compliance.”

The complainants provided a copy of their submission to DESE as required by OSERS’ 

January 8, 2018 letter.
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10. As a follow up to the February 27, 2018 telephone conversation referenced above, in a March 

8, 2018 email, OSEP confirmed the procedures that DESE should follow when providing 

OSEP any LEA materials that contain personally identifiable information.

11. On March 10, 2018, DESE forwarded the LEAs’ responses to OSEP.

12. On March 13, 2018, DESE requested a telephone call to discuss the complaint and the 

complainants’ March 6, 2018 submission to OSERS. OSEP responded to that request in a 

March 20, 2018 email to DESE and the complainants. In that email, OSEP notified the 

parties that they would have one final opportunity to submit information for consideration 

and set a timeline for each of the parties to respond.

13. On March 21, 2018, the complainants requested an extension of time for both parties to 

submit additional information to OSEP due to the religious holidays. OSEP granted the 

extension of time and notified the parties of the revised due date for their submissions.

14. On April 9, 2018, DESE provided its response to the complainants’ March 6, 2018 

submission to OSEP and provided a copy to the complainants as required by OSERS’ 

procedures.

15. On April 16, 2018, the complainants requested that OSEP confirm the due date for the 

complainants’ response to DESE’s April 9, 2018 submission. On that same date, OSEP 

provided the requested information to both parties.

16. On April 26, 2018, the complainants provided their response to DESE’s April 9, 2018 

submission and provided a copy to DESE as required by OSERS’ procedures.

17. On May 24, 2018, DESE requested that OSEP consider additional information in response to 

the complainants’ April 26, 2018 submission. In a June 1, 2018 email, OSEP communicated 

to both parties its decision to deny DESE’s request, because the parties had been informed on 

March 20, 2018 that there would be one final opportunity to submit information for OSEP’s 

consideration.

18. OSEP reviewed documentation relevant to the findings and conclusions referenced below, 

which includes the parties’ submissions, information obtained through OSEP’s fiscal 

monitoring of the State, and other publicly available information.

STANDING TO APPEAL: 20 U.S.C. § 1412(a)(10)(A)(v)(I) authorizes a private school 

official to file a complaint with the SEA against an LEA asserting that the latter “did not engage 

in consultation that was meaningful and timely, or did not give due consideration to the views of 
Page 6 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

the private school official.”4 Moreover, 20 U.S.C. § 1412(a)(10)(A)(v)(II) permits a private 

school official dissatisfied with the SEA’s decision to file a complaint seeking the Secretary’s 

review of that decision.

The complainants are a group of Catholic and Jewish private school officials asserting that the 

LEAs failed to conduct timely and meaningful consultation with the complainants’

representatives and with the representatives of parents of parentally-placed private school 

children with disabilities. See § 1412(a)(10)(A)(v)(I). After receiving an unfavorable decision 

from PRS, the complainants have appealed to the Secretary seeking her review of the decision 

below. See § 1412(a)(10)(A)(v)(II). For the reasons given, they have standing to bring this 

appeal. 

ALLEGATION #1: DESE failed to consider the child find allegations set forth in the private 

school officials’ complaints to DESE.

Findings of Fact

1. DESE reported that PRS requested information from the LEAs regarding the child find 

allegations and reviewed the information it received. However, “it did not make a separate 

finding as to those allegations as a separate heading in the Letters of Findings.” See DESE 

Response #1, page 4.

2. DESE reported that it declined to resolve the allegations as a separate issue because it 

believed that “PRS does not have jurisdiction to make a separate finding regarding violations 

of the child find requirement in 34 C.F.R. 300.131.” See DESE Response #1, page 7.

4 Section 612(a)(10)(A)(v) of the IDEA reads:

(v) Compliance

(I) In general—a private school official shall have the right to submit a complaint to the State educational agency 

that the local educational agency did not engage in consultation that was meaningful and timely, or did not give due 

consideration to the views of the private school official. 

(II) Procedure—If the private school official wishes to submit a complaint, the official shall provide the basis of the 

noncompliance with this subparagraph by the local educational agency to the State educational agency, and the local 

educational agency shall forward the appropriate documentation to the State educational agency. If the private 

school official is dissatisfied with the decision of the State educational agency, such official may submit a complaint 

to the Secretary by providing the basis of the noncompliance with this subparagraph by the local educational agency 

to the Secretary, and the State educational agency shall forward the appropriate documentation to the Secretary. 20 

U.S.C. § 1412(a)(10)(A)(v).

The Department’s IDEA Part B regulation at 34 C.F.R. § 300.136 essentially incorporates this statutory provision. 

The authority to administer the requirements of IDEA and its implementing regulations, including the abovereferenced statutory and regulatory provision, has been delegated to the Assistant Secretary for the Office of Special 

Education and Rehabilitative Services (OSERS), who has administrative oversight of State implementation of IDEA 

and has conducted the review of this complaint.
Page 7 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

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3. DESE further reported that it did not make a separate finding regarding the child find 

allegations because “34 C.F.R. 300.140 explicitly provides that ‘child find complaints’ are to 

be addressed through due process procedures” and noted that “due process complaints are to 

be filed with the Bureau of Special Education Appeals, a State agency under the 

Commonwealth of Massachusetts Division of Administrative Law Appeals.” See DESE 

Response #1, page 5.

4. DESE stated that “making a separate finding regarding ‘child find’ would not have changed 

the outcome or the resolution of any of the complaints.” The State further reported that, 

“[h]aving a separate finding on the ‘child find’ allegation would not have altered the noncompliance findings or the actions ordered by PRS beyond what PRS already required the 

district to do.” See DESE Response #1, page 7.

5. In 24 of the 25 LEAs, DESE identified noncompliance due to the LEA’s failure to conduct 

timely and meaningful consultation with respect to child find. See DESE Response #1, page 

7. However, the PRS decisions included statements that it was “not making any 

determinations with respect to this requirement.” See, e.g., PRS Letter of Findings to 

Worcester Public Schools, page 4.

OSERS’ Analysis and Conclusions

The Department’s position is that States may choose to use their State complaint procedures 

established under 34 C.F.R. §§ 300.151-300.153 as the means to resolve a complaint filed by a 

private school official pursuant to 34 C.F.R. § 300.136, as DESE has done. See 71 Fed. Reg. 

46595. Under 34 C.F.R. § 300.151, each SEA must adopt written procedures for resolving any 

complaint, including a complaint filed by an organization or individual from another State, that 

meets the requirements of 34 C.F.R. § 300.153. 

A complaint filed pursuant to 34 C.F.R. §§ 300.151 through 300.153 must be signed and written 

and must include “a statement that a public agency has violated a requirement of Part B of the 

Act” or of the Part B regulations. Regardless of whether the complaint alleges a matter that could 

be the subject of a due process complaint under IDEA (see 34 C.F.R. § 300.140(b)), if the 

complaint meets the content requirements in 34 C.F.R. § 300.153, the SEA must resolve that 

complaint in accordance with the requirements in 34 C.F.R. § 300.152. 

If a private school official alleges that an LEA did not comply with the child find requirement in 

34 C.F.R. § 300.131, which is one of the applicable private school requirements in 34 C.F.R. Part 
Page 8 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

300 and also a required subject of consultation in 34 C.F.R. § 300.134, the SEA must resolve the 

allegation consistent with its State complaint procedures.5

In this situation, the private school officials submitted their complaint to the SEA pursuant to 

both 34 C.F.R. § 300.136 (the provision that provides authority for a private school official to 

file a complaint against an LEA with the SEA and seek review of the SEA’s final decision by the 

Secretary) and the IDEA State complaint procedures in 34 C.F.R. §§ 300.151-300.153 (which 

provide for resolution of the complaint at the State level with no further review by the Secretary). 

The opening paragraph of each complaint includes language that identifies the name of the 

private school and specifies that the representative is filing a “complaint under 34 C.F.R. §

300.136, 300.140, and 300.151-300.153...” See, e.g., the opening paragraph in the complaint 

filed with DESE regarding Worcester Public Schools dated, June 28, 2017.

OSERS finds that DESE was required to resolve the child find allegations included in the private 

school officials’ complaint filed pursuant to 34 C.F.R. §§ 300.136 and 300.151-300.153, because 

child find is a required subject of consultation, and is an appropriate subject of a Part B State 

complaint even though it also could be the subject of a due process complaint, consistent with 34 

C.F.R. § 300.140(b).

Required Actions

Within 90 days of receipt of this letter, DESE must:

1. Review and revise its policies, procedures, and practices as necessary, to ensure that 

DESE fulfills its responsibility to resolve complaints filed pursuant to the IDEA Part B 

State complaint procedures in 34 C.F.R. §§ 300.151-300.153 or 34 C.F.R. § 300.136

when such a complaint is filed by a private school official and alleges violations of the 

child find requirements in 34 C.F.R. § 300.131 with respect to parentally-placed private 

school children with disabilities.

2. Notify OSEP in writing of the results of DESE’s review. OSEP will review the State’s 

submission and determine if any further action is required.

ALLEGATION #2: DESE incorrectly limited the scope of its review of a complaint filed 

pursuant to 34 C.F.R. § 300.136 to a one-year period.

Findings of Fact

5 There are important differences between the types of issues, procedures, and appeal processes for complaints filed 

under 34 C.F.R. §§ 300.151-300.153 and those filed pursuant to 34 C.F.R. § 300.136. Although not specifically 

required by IDEA, OSERS recommends that as a best practice, DESE should inform its stakeholders of the 

procedures it uses to resolve both types of complaints, including the jurisdiction of each procedure, the issues that 

may be raised, filing timelines, appeal processes, and other relevant procedures.
Page 9 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

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1. DESE reported that it uses the same procedures to resolve a complaint filed by a private 

school official pursuant to 34 C.F.R. § 300.136 as those it has established for resolving State 

complaints filed pursuant to 34 C.F.R. §§ 300.151-300.153. These procedures are set out in 

DESE’s Problem Resolution System (PRS) Information Guide available at: 

http://www.doe.mass.edu/pqa/prs/. See SEA Response #1, page 7.

2. The PRS Information Guide states, in part:

The Department has authority to take action to resolve a complaint if it is about State or 

federal legal requirements for education. The Department will take steps to resolve a 

complaint if it:

(1) is about a student’s current general education program; or 

(2) alleges that a special education requirement has been violated, and the violation occurred 

no more than one year before the Department received the written complaint.

OSERS’ Analysis and Conclusions

Under 34 C.F.R. § 300.136, a private school official has the right to submit a complaint to the 

SEA that the LEA did not engage in consultation that was meaningful and timely or did not give 

due consideration to the views of the private school official. Neither IDEA nor the IDEA Part B 

regulations include a timeline by which a private school official must submit a complaint to the 

SEA or to the Secretary to resolve these allegations.

As noted in our analysis of Allegation 1, the Department’s position is that States may choose to

use their State complaint procedures established under 34 C.F.R. §§ 300.151-300.153 as the 

means to resolve a complaint filed by a private school official pursuant to 34 C.F.R. § 300.136. 

See 71 Fed. Reg. 46595. Under the State complaint procedures in 34 C.F.R. § 300.153(c), a 

complaint must allege a violation that occurred not more than one year prior to the date that the 

complaint is received. 

As an additional protection, a State may adopt a policy or procedure to accept and resolve 

complaints regarding alleged violations that occurred outside the one-year timeline in 34 C.F.R.

§ 300.153(c). 71 Fed. Reg. 46606. Therefore, if a State has chosen to apply its State complaint 

procedures under 34 C.F.R. §§ 300.151 through 300.153 in resolving complaints filed under 34

C.F.R. § 300.136 and if the State has chosen not to accept and resolve State complaints filed 

outside of the one-year timeline, OSERS does not interpret IDEA as requiring the State to accept 

and resolve complaints filed pursuant to 34 C.F.R. § 300.136 that include allegations outside of 

the one-year timeline.

The complainants propose that even if an SEA is permitted to limit the scope of its complaint 

resolution to one year, it should have included the 2015-2016 school year (from which carry-
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and Secondary Education

over funds could be available for equitable services), as well as the one-year period preceding the 

date the complaint was received. The complainants assert that DESE should be required to notify 

the public of its decision to use a one-year timeline for complaints filed pursuant to 34 C.F.R. §

300.136. While the IDEA Part B regulations require the SEA to disseminate the procedures it 

uses to resolve State complaints filed pursuant to 34 C.F.R. §§ 300.151-300.153 (including the 

timelines for filing a complaint) to a wide audience,

6 there is no similar provision for widely 

disseminating procedures for complaints that can be filed by private school officials under 34 

C.F.R. § 300.136.7

Based on the above, OSERS has concluded that it is not inconsistent with IDEA for DESE to 

have limited its resolution of the complainants’ complaints to the one-year period measured as 

one year prior to the date the complainants’ submitted their complaints to the SEA.

Required Actions

None

Allegation #3: DESE did not require LEAs to produce evidence that funds spent on equitable 

services were derived from the IDEA Part B grant and failed to address the complainants’ 

concerns regarding LEAs’ compliance with the “supplement but not supplant” and maintenance 

of effort (MOE) requirements in 34 C.F.R. §§ 300.133(d) and 300.203.

Findings of Fact

1. After receiving the complainants’ allegations, PRS contacted each of the LEAs in writing and 

requested that it “produce documents and information regarding ‘calculation of the 

proportionate share’ by the District for IDEA Part B funds [and] [f]inancial documents 

evidencing expenditures of proportionate share funds under IDEA Part B” for the 2016-2017 

school year.” See, e.g., SEA Response #1, page 8, referencing PRS’s July 19, 2017 

correspondence to Taunton School District.

2. The extent to which the LEAs submitted the requested documentation varied. Only two of 

the 25 LEAs (Acushnet and Fall River) submitted documentation that PRS found sufficient 

to conclude that the LEAs complied with the requirements in 34 C.F.R. § 300.133.

6 Under 34 C.F.R. § 300.151(a)(2), each SEA must adopt procedures for “widely disseminating to parents and other 

interested individuals, including parent and training information centers, protection and advocacy agencies, 

independent living centers, and other appropriate entities, the State procedures under 300.151 through 300.153.”

7 As noted in Footnote 4, OSERS recommends that as a best practice, DESE should inform its stakeholders of the 

procedures it uses to resolve both types of complaints, including the filing timelines and other relevant procedures.
Page 11 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

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3. The PRS Letters of Finding do not specify the amount of the LEAs’ required proportionate 

share of IDEA Part B funds to be used for parentally-placed private school children with 

disabilities or the amount of IDEA Part B funds the LEAs actually expended for this purpose.

4. In multiple cases, the LEAs’ written responses to PRS note confusion about compliance with 

IDEA requirements regarding equitable services due to the SEA’s previous guidance 

regarding the State-imposed requirement for a free appropriate public education (FAPE) to 

parentally-placed private school children with disabilities and IDEA’s equitable services 

requirements for such children. See, e.g., Holyoke School District’s submission to PRS, page 

4. Some LEAs reported that prior to DESE’s June 27, 2017 guidance, LEAs were not 

directed to include home-schooled children with disabilities in the count of parentally-placed 

private school children with disabilities and asserted that the State has no legal basis to 

require such children to be included in the proportionate share calculation.

8 See, e.g.,

Chicopee Public Schools’ submission to PRS, page 9.

5. While PRS reached a conclusion as to whether each LEA complied with 34 C.F.R. § 300.133 

generally, the PRS decisions do not specifically include findings and conclusions that address

the complainants’ allegations that LEAs used State and local funds to supplant IDEA Part B 

funds in the provision of services to children with disabilities placed by their parents in 

private schools in violation of 34 C.F.R. § 300.133(d). Further, the PRS decisions do not 

resolve the complainants’ concerns about whether the LEAs complied with the MOE

requirements in 34 C.F.R. § 300.203.

Relevant IDEA Requirements

Use of State and Local Funds to Supplant the Proportionate Share of IDEA Funds Prohibited:

Under IDEA, State and local funds may supplement and in no case supplant the proportionate 

amount of Federal funds required to be expended for parentally-placed private school children 

with disabilities. 20 U.S.C. § 1412(a)(10)(A)(i)(IV); 34 C.F.R. § 300.133(d).

LEA MOE Requirements: Generally, 34 C.F.R. § 300.203 provides that an LEA may not reduce 

the amount of local, or State and local, funds that it spends for the education of children with 

disabilities below the amount it spent for the preceding fiscal year, except as provided in 34 

C.F.R. §§ 300.204 and 300.205. There are two components to the LEA MOE requirement – the 

eligibility standard (34 C.F.R. § 300.203(a)) and the compliance standard (34 C.F.R. §

8 Whether home-schooled children with disabilities are considered parentally-placed private school children with 

disabilities is determined under State law. If the State recognizes home-schools as private elementary and secondary 

schools, children with disabilities in those home-schools must be treated in the same way as other parentally-placed

private school children with disabilities. See Questions and Answers on Serving Children with Disabilities Placed by 

Their Parents in Private Schools, (Revised April 2011), hereinafter “Private Schools Q&A,” Question K-2. 
Page 12 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

300.203(b)). See Q&A Regarding Local Educational Agency (LEA) Maintenance of Effort Q&A 

(hereinafter, MOE Q&A), Question A-1.9

The eligibility standard in 34 C.F.R. § 300.203(a) requires that, in order to find an LEA eligible 

for an IDEA Part B subgrant for the upcoming fiscal year, the SEA must determine that the LEA 

has budgeted for the education of children with disabilities at least the same amount of local, or 

State and local, funds, as it actually spent for the education of children with disabilities during 

the most recent fiscal year for which information is available. See MOE Q&A, Question A-2. 

When determining the amount of funds that an LEA must budget to meet the eligibility standard, 

the LEA may take into consideration, to the extent the information is available, the exceptions and 

adjustment provided in 34 C.F.R. §§ 300.204 and 205 that the LEA: (i) took in the intervening year 

or years between the most recent fiscal year for which information is available and the fiscal year 

for which the LEA is budgeting; and (ii) reasonably expects to take in the fiscal year for which the

LEA is budgeting. See 34 C.F.R. § 300.203(a)(2) and MOE Q&A, Question D-2.

The compliance standard in 34 C.F.R § 300.203(b) prohibits an LEA from reducing the level of 

expenditures for the education of children with disabilities made by the LEA from local, or State 

and local, funds below the level of those expenditures from the same source for the preceding 

fiscal year. In other words, an LEA must maintain (or increase) the amount of local, or State and 

local, funds it spends for the education of children with disabilities when compared to the 

preceding fiscal year, except as provided in 34 C.F.R. §§ 300.204 and 300.205. See MOE Q&A, 

Question A-3.

Relevant Massachusetts State Law

Under IDEA, no parentally-placed private school child with a disability has an individual right to 

receive some or all of the special education and related services that the child would receive if 

enrolled in public school. 34 C.F.R. § 300.137(a). By contrast, Massachusetts has imposed a

State requirement that its districts provide services to parentally-placed private school children 

with disabilities beyond those required by Part B of the IDEA and its implementing 

regulations.10

As a matter of State law, “all school age children with disabilities are entitled to a free 

appropriate public education (FAPE) from their school district of residence, regardless of 

whether they are enrolled in a public or private school.” See SEA Response #1, page 4.

9 A copy of this document is available at https://sites.ed.gov/idea/idea-files/qa-regarding-local-educational-agencylea-maintenance-of-effort-moe/.

10 Under Massachusetts’ State Law, Mass. Gen. L. c. 71B, § 3, all eligible children are provided an individual 

entitlement to special education and related services from the school district where the child’s parent resides.
Page 13 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

Additionally, as a matter of State law, children who are home-schooled are considered “privately 

educated.” DESE staff report that although there is no specific statute or regulation for this 

requirement, the SEA has “consistently interpreted the State statutes in this manner since at least 

1994, based in part upon Mass. Gen. Law, c. 71; Mass. Gen. Law c. 76 § 1; and Massachusetts 

case law.” (November 1, 2017 email correspondence from DESE staff to OSEP State Lead). 

Also see, Administrative Advisory 2018-1.

OSERS’ Analysis and Conclusions

Use of State and Local Funds to Supplant the Proportionate Share of IDEA Part B Funds: 

The complainants correctly state that LEAs must expend a proportionate share of IDEA Part B 

funds for parentally-placed private school children with disabilities under 34 C.F.R. § 300.133, 

notwithstanding any State and local funds that may be used for such children. Based on the lack 

of clear and accurate guidance prior to DESE’s June 27, 2017 guidance and information in the 

LEAs’ responses to complaints filed by the complainants with PRS, OSERS concludes that, 

generally LEAs did not understand their obligation to use a proportionate share of IDEA Part B 

funds to provide equitable services to parentally-placed private school children with disabilities, 

separate and apart from any State and local funds used for this population of children. 

Although PRS did not make specific findings and conclusions on this matter, the documentation, 

which includes acknowledgements from some LEAs, supports the complainants’ allegation that 

at least in some instances, State and local funds were used to supplant the proportionate share of 

IDEA Part B funds in violation of the requirements in 20 U.S.C. § 1412(a)(10)(A)(i)(IV) and 34 

C.F.R. § 300.133(d).

Further, the complainants are correct in stating that PRS did not gather sufficient information to 

reach a determination as to the amount of IDEA Part B funds (if any) that were used by each 

LEA to serve parentally-placed private school children with disabilities. Without further

documentation, OSERS is unable to determine the amount of IDEA Part B funds that the LEAs 

were required to use and actually expended to provide equitable services. 

LEA MOE Requirements: The complainants have expressed concern regarding how and 

whether LEAs have established a baseline for the amount of State and local funds spent on 

parentally-placed private school children with disabilities. The complainants assert that “an LEA 

must continue to offer parentally-placed private school students the same level of support 

provided in previous years with [S]tate and local funds, in addition to spending a proportionate 

share of [F]ederal dollars on private school students.” See October 27, 2017 complaint, page 8. 

Prior to the 2004 reauthorization of IDEA, if an LEA spent more than the required proportionate 

share of IDEA Part B funds using State and local funds, the LEA was not required to spend any 

IDEA Part B funds on parentally-placed private school children. However, the 2004 
Page 14 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

reauthorization of IDEA made this practice impermissible. In explaining this change, the 

Department stated:

An LEA that previously used only State and local funds to provide equitable services to 

children with disabilities placed by their parents in a private school and now uses Federal 

Part B funds to provide equitable services must meet the maintenance of effort 

requirements in 34 CFR 300.203. The exceptions to maintenance of effort requirements 

in 34 CFR 300.204 do not apply to funds used for equitable participation of parentallyplaced private school children with disabilities. Therefore, the total or per capita amount 

of local or State and local funds expended for the education of children with disabilities, 

including the amount of local or State and local funds previously expended for equitable 

services to children with disabilities placed by their parents in private schools, would 

have to be maintained, unless an adjustment is permitted under 34 CFR 300.205.

See Private Schools Q&A, Question H-8.

OSEP has also advised that if an LEA maintains (or exceeds) its level of local, or State and local, 

expenditures for the education of children with disabilities from year to year, either in total or per 

capita, then the Part B funds are, in fact, supplementing those local, or State and local, 

expenditures and the LEA has met both its MOE requirement in 34 C.F.R. § 300.203 and the 

supplement/not supplant requirement in 34 C.F.R. § 300.202(a)(3). In other words, if an LEA 

meets its MOE requirement, then it also meets its supplement/not supplant requirement.11 See 

Guidance on Funds for Part B of the Individuals with Disabilities Education Act Made Available 

Under The American Recovery and Reinvestment Act of 2009 (April 2009, Revised September 9, 

2010), Question C-6. See also September 25, 2009 Letter to Sarge Kennedy.

12

An LEA does not violate IDEA’s supplement, not supplant provision in 34 C.F.R. § 

300.202(a)(3) if it uses the proportionate share of IDEA Part B funds to provide services to 

parentally-placed private school children with disabilities that were previously paid with State 

and local funds. Further, with respect to compliance with the MOE requirements, an LEA is not 

required to maintain the same amount of State and local funding for a specific line item or 

category of expenditures (such as the amount of funds budgeted and spent to provide services to 

parentally-placed private school children with disabilities). In summary, an LEA meets the MOE 

requirement if it maintains either the total aggregate amount or per capita amount of funds when 

11 Under 34 C.F.R. § 300.202(a)(3), IDEA Part B funds provided to an LEA must be used to supplement, not 

supplant, State, local and other Federal funds. Prior to 1992, the Part B regulations had included a “particular cost 

test” for determining whether supplanting occurred. The “particular cost test” was removed from the regulations by 

an amendment published in the Federal Register on August 19, 1992 (37 Fed. Reg. 37652).

12 A copy of this letter is available online at: https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/letters/2009-

3/kennedy092509useoffedfunds3q2009.doc.
Page 15 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

budgeting and expending local, or State and local funds for the education of children with 

disabilities.

DESE notes in its responses dated, February 8, 2018 (page 9) and April 9, 2018 (page 6), that it 

did not have to specifically address the complainants’ allegations related to LEAs’ compliance 

with supplement, not supplant and LEA MOE requirements because the complainants failed to 

provide “facts on which the statement [that a public agency has violated a requirement] is based” 

as required by 34 C.F.R. § 300.153(b)(2). In its written decision, PRS communicated it had 

limited its resolution to “those allegations for which the [complainants] attempted to provide 

support.”13 See, e.g., PRS Letter of Findings to Fitchburg Public Schools, page 2. 

Based on the above, OSERS concludes that, PRS did not sufficiently address the complainants’ 

specific allegation that LEAs violated the supplement, not supplant requirement in 20 U.S.C. § 

1412(a)(10)(A)(i)(IV) and 34 C.F.R. § 300.133(d). Additionally, PRS did not address the 

complainants’ allegation as to whether the LEAs met the MOE requirements in 34 C.F.R. § 

300.203, notwithstanding any change in the amount of Federal, State, and local funds used to 

provide services to parentally-placed private school children with disabilities. 

Required Actions

The actions required to address the noncompliance related to the supplement, not supplant 

requirements in 20 U.S.C. § 1412(a)(10)(A)(i)(IV) and 34 C.F.R. § 300.133(d) have been 

consolidated and described under Allegation #4 below. Under 20 U.S.C. § 1412(a)(10)(A)(v) and 

34 C.F.R. § 300.136(b)(1), if the private school official wishes to submit a complaint to the SEA, 

the official must provide the basis of the noncompliance by the LEA with the applicable private 

school requirements in 34 C.F.R. Part 300.

If the private school official is dissatisfied with the SEA’s decision, under 34 C.F.R. § 

300.136(b)(3), such official may submit a complaint to the Secretary by providing the basis of 

the noncompliance with these requirements. Because the LEAs’ alleged noncompliance with 

MOE requirements is outside the scope of a complaint that can be filed by a private school 

official under 34 C.F.R. § 300.136, (which is limited to the applicable private school provisions 

in 34 C.F.R. Part 300), OSERS reaches no conclusion regarding this issue. 

13 The IDEA Part B regulations do not address an SEA’s dismissal of, or refusal to resolve, an allegation in a 

complaint based on lack of supporting facts. In such circumstances we believe an SEA should notify the 

complainant and provide an opportunity for the complainant to provide the missing content. The SEA could notify 

the complainant that the allegation will not be resolved and that the time limit not commence until the missing 

content is provided. See Questions and Answers on IDEA Part B Dispute Resolution Procedures, Revised July 

2013, Question B-15 available at: 

https://sites.ed.gov/idea/files/idea/policy/speced/guid/idea/memosdcltrs/acccombinedosersdisputeresolutionqafinalm

emo-7-23-13.pdf
Page 16 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

Allegation #4: DESE did not require appropriate corrective actions.

Findings of Fact

1. As a result of the PRS investigations, LEAs with identified noncompliance were required to 

complete specified corrective actions. In the majority of reports, the LEA was required to:

a. Conduct training for all appropriate staff on the requirements included in Administrative 

Advisory 2018-1 and provide PRS with the date(s) of the training(s), name and title of the 

presenter, and the staff members that attended.

b. Provide a written assurance by the LEA’s Superintendent that the LEA will follow the 

requirements in Administrative Advisory 2018-1 and other actions ordered in DESE’s June 

22, 2017 memorandum.

c. Provide evidence to PRS that the LEA arranged or conducted its timely and meaningful 

consultation meetings for fiscal year 2018 (school year 2017-2018) as required by 34 

C.F.R. § 300.134, including date(s) of the consultation meeting(s), any written notice 

provided to private schools, meeting agenda, and if attendance is kept, the attendance 

sheet. Further, the LEA was to provide written affirmation after the meeting(s) were held. 

See, e.g., PRS Letter of Findings for the Dennis-Yarmouth Regional School District, page 

4.

2. PRS noted that DESE had “corrected its partial noncompliance” by: (a) completing the 

corrective actions ordered in OSEP’s May 13, 2016 fiscal monitoring letter; and (b) issuing 

the June 22, 2017 memorandum requiring LEAs to recalculate the proportionate share for 

fiscal years 2017 (school year 2016-2017) and 2018 (school year 2017-2018). See PRS 

September 28, 2017 decision to DESE, page 6.

3. As a result of the its investigation, PRS required DESE to take the following actions:

a. Submit updated criteria for monitoring LEA compliance with each component of timely 

and meaningful consultation to PRS for its review and approval.

b. Submit “sample submissions from five randomly-selected LEAs that show that 

information required by 34 C.F.R. § 300.132(c) is being provided to the SEA.” 

See PRS September 28, 2017 decision to DESE, pages 8-9.

OSERS’ Analysis and Conclusions

IDEA and its implementing regulations are silent on the precise remedies available when an 

SEA finds an LEA did not comply with the requirements referenced in 20 U.S.C. §

1412(a)(10)(A)(v) and 34 C.F.R. § 300.136(a). For complaints filed pursuant to the IDEA’s 
Page 17 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

State complaint procedures, an SEA has broad discretion in determining remedies and 

corrective actions when it finds a public agency has failed to meet IDEA’s equitable services 

requirements. In light of the SEA’s general supervisory authority and responsibility under 

sections 612(a)(11) and 616 of IDEA and 34 C.F.R. §§ 300.149 and 300.600, we believe the 

SEA should have broad flexibility to determine the appropriate remedy or corrective action 

necessary to resolve a complaint in which the SEA has found that a public agency has failed 

to meet a requirement of IDEA and the IDEA Part B regulations.

While a State may determine the specific nature of the required corrective action, it must 

ensure that any noncompliance is corrected as soon as possible, but in no case more than one 

year after the State’s identification of the noncompliance. 34 C.F.R. § 300.600(e); see also 

OSEP Memorandum 09-02, October 17, 2008.

In each Letter of Findings for the 25 districts, as well as the decision pertaining to DESE, when 

PRS identified noncompliance, it ordered specific corrective actions and required the submission 

of documentation to PRS for verification. However, OSERS agrees with the complainants that in 

this circumstance, the actions PRS ordered are insufficient to address the scope of the identified 

noncompliance. 

As an initial matter, the IDEA violation here was the failure to have policies and procedures in 

place that were consistent with the requirements of IDEA. Thus, the violation was continuous 

rather than made up of distinct, discrete acts. The latter might have reset the clock and run some 

of the violations out of the one-year time limit placed on the filing of State complaints. Because 

the pattern and effect of the violations made them ongoing, they were not “‘temporally distinct,’” 

Ledbetter v. Goodyear Tire & Rubber Co., Inc., 550 U.S. 618, 638 (2007) (quoting National 

Railroad Passenger Corp. v. Morgan, 536 U.S. 101, 114 (2002)), because the respondents’ 

failure to have policies and procedures in place consistent with IDEA did not take a break. No 

chronological gap broke the patterns of, intentions behind and/or manifestations of the violation. 

This is at least in part because, unlike in Ledbetter, here no ratifying act denoting finality of 

decision or conclusion of time period carved up the violation into discrete acts. 550 U.S. at 621. 

Because the consequences of counting a violation so thinly in the special education line of cases 

where violations often span long periods of time can be drastic and even fatal to otherwisemeritorious claims, as it could be here, presumably the regulatory scheme would have been 

unambiguous about it. No such clear statement is evident here. Consequently, the complainants 

alleged one running violation spanning more than a decade; and the Secretary may consider this 

entire time period or any of its salient parts when determining culpability and fashioning 

“appropriate” relief. “Appropriate” relief refers to a remedy that is “suitable or acceptable for a 
Page 18 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

particular situation.” COLLINS ENGLISH DICTIONARY COMPLETE AND UNABRIDGED (10th ed.) 

(2010).

14

Second, given the lack of clear and accurate guidance from DESE, LEAs other than those that 

were the subject of the 25 complaints may also have failed to fully comply with IDEA 

requirements related to children with disabilities enrolled in private schools by their parents. 

Third, as explained further under Allegation #5, the LEAs’ calculation methods were flawed in 

multiple ways and it is possible that none of the calculations were accurate, notwithstanding 

PRS’s conclusion that a few LEAs were in compliance. 

In order to accurately calculate the proportionate share, the SEA must go back five Federal fiscal 

years (FFYs) in conducting the required actions below, bearing in mind the records retention 

requirements in the Uniform Guidance: “Financial records, supporting documents, statistical 

records, and all other non-Federal entity records pertinent to a Federal award must be retained for 

a period of three years from the date of submission of the final expenditure report.” 2 C.F.R. § 

200.333. In guidance previously provided by OSERS, since the three-year records retention 

timeframe begins upon the date the final expenditure report is to be submitted, the minimum 

records retention period extends five and a half years from the date the record is created.15 Thus, 

as part of the corrective action detailed below, DESE will be required to review LEA records 

from FFY 2014 to 2018.

OSERS recognizes the complexity of these required actions and will make technical assistance 

available to support the State and its LEAs to fulfill their obligations.

Required Actions

Within 15 days of receipt of this report, OSERS representatives will meet with DESE to discuss 

the specific required actions and essential components of the work plan DESE must develop (e.g., 

timelines and resources DESE will dedicate) to carry out each of the following required actions.

DESE must require the State’s LEAs to:

1. Establish a count of parentally-placed private school children with disabilities: Using the 

best data available and in consultation with private school representatives and 

representatives of parents of parentally-placed private school children with disabilities, 

each LEA in the State must determine the number of children with disabilities enrolled by 

their parents in private elementary and secondary schools that are physically located in 

14 “Appropriate,” similarly, is elsewhere defined as “especially suitable or compatible.” WEBSTER’S THIRD NEW 

INTERNATIONAL DICTIONARY (Philip Babcock Gove, ed.) (2008). In other words, the correctness of the remedy 

inextricably depends on the circumstances of the violation.

15 See Letter to Anonymous: https://www2.ed.gov/policy/speced/guid/idea/memosdcltrs/osep-letter-to-anonymous-2-

27-17-recordretention.pdf
Page 19 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

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the LEA. Consistent with State law, children with disabilities who are home-schooled in 

the LEA for FFYs 2014, 2015, 2016, 2017, and 2018 must be included in this count. The 

State must also ensure that nonresident children with disabilities who attend private 

schools located in the LEA for FFYs 2014, 2015, 2016, 2017, and 2018 are included in 

this count.

2. Recalculate the proportionate share: Using the revised child count established above, 

each LEA in the State must properly calculate the proportionate share of IDEA Part B 

funds (including funds from both its section 611 and 619 grants) required for the 

provision of equitable services under 20 U.S.C. § 1412(a)(10)(A)(i) and 34 C.F.R. § 

300.133 for FFYs 2014, 2015, 2016, 2017, and 2018.

3. Determine the amount of State, local, and IDEA Part B funds actually expended: Each

LEA in the State must determine the amount of State, local, and IDEA Part B funds that 

the LEA expended in FFYs 2014, 2015, 2016, 2017, and 2018 to provide special 

education and related services to parentally-placed private school children with 

disabilities (including home-schooled children as consistent with State law). The amount 

of State and local funds and the amount of IDEA Part B funds must be determined and 

calculated separately for each fiscal year.16 The expenditures must be verifiable by the 

SEA or State and/or local auditors.

4. Determine the amount of the shortfall in funds (if any) spent to provide services to

parentally-placed private school children with disabilities: By subtracting the result 

calculated in #2 from the result determined in #3 above, each LEA must identify the 

amount of the shortfall (if any), in funds spent to provide services to parentally-placed 

private school children with disabilities. The LEA must perform this calculation 

separately for FFYs 2014, 2015, 2016, 2017, and 2018.

5. Remedy any shortfall by using available State and local funds, and IDEA Part B funds 

(where available) to make up the difference: When remedying any shortfall, an LEA may 

use State and local funds and/or IDEA Part B funds to the extent the LEA has not already 

used an amount of such funds equal to its required proportionate share for the FFY. In 

addition, DESE has the discretion to use a portion of its IDEA Part B funds reserved for 

State level activities to support LEAs in remedying any shortfall.

6. Engage in timely and meaningful consultation with private school representatives and 

representatives of parents of parentally-placed private school children with disabilities in 

16 An LEA may include only the amount of local, or State and local funds in this calculation to the extent those 

funds are not needed for the LEA to comply with 34 C.F.R. § 300.203.
Page 20 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

accordance with 34 C.F.R. § 300.134(d), to provide an opportunity for all parties to 

express their views about how the amount of funds equal to the shortfall should be 

used. The LEAs, private school officials, and representatives of parents of parentallyplaced private school children may choose to combine the amount of shortfall funds from 

multiple years, as appropriate. Considering a larger, combined amount of funds could 

provide the group with increased options when determining how best to meet the needs of 

parentally-placed private school children with disabilities with these funds. Should the 

LEA, private school officials, and representatives of parents of parentally-placed private 

school children with disabilities agree to combine the amount of shortfall funds, other 

components of the consultation process required under IDEA must be followed. As the 

authority to make the final decision, upon consultation, resides solely with the LEA, if 

the LEA representatives disagree with the views of the private school officials on the 

provision of services or the types of services (whether provided directly or through a 

contract), the LEA must provide to the private school officials a written explanation of 

the reasons why the LEA chose not to provide services directly or through a contract in 

accordance with 34 C.F.R. § 300.134(e).

7. Provide documentation to DESE, that DESE reports to OSERS, demonstrating that the 

required actions have been taken. This documentation must include:

a. The results of the LEA’s recalculation of the proportionate share (i.e., revised 

child count data, amount of IDEA Part B funds used in the calculation with 

evidence that both section 611 and 619 funds were included, as appropriate, and 

the amount of proportionate share).

b. The total amount of expenditures the LEA previously made with State, local, and 

IDEA Part B funds for FFYs 2014, 2015, 2016, 2017, and 2018 to provide 

services to parentally-placed private school children with disabilities.

c. Evidence that the LEAs have conducted meaningful and timely consultation with 

private school representatives and representatives of parents of parentally-placed 

private school children with disabilities and have given due consideration to the 

views of the private school officials, on matters including, but not limited to, 

discussions of the child find process and the decisions reached concerning the use 

of any shortfall amount for equitable services.

Allegation #5: DESE failed to properly guide and monitor LEAs to ensure equitable 

participation of parentally-placed private school children with disabilities in the LEAs’ special 

education programs.
Page 21 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

and Secondary Education

Findings of Fact

1. In its May 13, 2016 fiscal monitoring letter, OSEP issued a finding that DESE did not have 

procedures in place to ensure that LEAs spend the required amount of their section 611 and 

section 619 subgrants on providing special education and related services to parentallyplaced private school children with disabilities in accordance with the requirements in 34 

C.F.R. § 300.133 and Appendix B of 34 C.F.R. Part 300. OSEP required the State to submit 

revised policies and procedures demonstrating compliance with the regulations in 34 C.F.R. 

§ 300.133 and Appendix B.17

2. In response to OSEP’s findings, DESE revised Administrative Advisory 2018-1. In that 

document, the State explains how it will carry out its general supervisory responsibilities

with respect to IDEA requirements for parentally-placed private school children with 

disabilities. The document states that the SEA’s reporting and oversight will consist of 

annual reviews of LEA data, Coordinated Program Review processes, and financial audits. 

The document further states DESE will review data from its LEAs’ Proportionate Share 

Forms that include consultation, child count, and how the LEA projects to use IDEA section 

611 and 619 funds for equitable services.

3. According to Administrative Advisory 2018-1, DESE’s special education monitoring process 

includes a measure to examine an LEA’s procedures related to parentally-placed private 

school children, i.e., Criterion 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 Criterion 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.” DESE’s monitoring process does not appear to review an LEA’s procedures used to 

provide services to an eligible child with disabilities enrolled in a private school located 

within an LEA and the child’s parent resides outside of the LEA but within the State. 

4. According to Administrative Advisory 2018-1, DESE’s Office of Audit and Compliance is 

responsible for reviewing LEA compliance with the IDEA proportionate share calculations 

and supporting documentation including the list of parentally-placed private school children 

with disabilities, signed written affirmations from participating representatives of private 

schools, and expenditures.

17 OSEP’s document that describes the identified noncompliance and required corrective actions is available at: 

https://www2.ed.gov/fund/data/report/idea/partbfmltrs/fmi-ma-2016b.pdf.
Page 22 — Appeal of Resolution of Complaints by the Massachusetts Department of Elementary 

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5. Prior to the July 2018 revision to Administrative Advisory 2018-1, LEAs were advised to use 

the amount of their IDEA section 611 funds as the denominator when calculating the 

proportionate share of IDEA Part B funds that must be used for parentally-placed private 

school children with disabilities.

6. A review of LEA responses to the complainants’ allegations that the LEAs failed to comply 

with the IDEA provisions reflect a belief by several LEAs that: (i) DESE did not provide 

clear direction to its LEAs about the equitable services requirements; and (ii) the State 

changed its position with respect to the requirement to use a proportionate share of IDEA 

Part B funds to provide services to nonresident children with disabilities placed in private 

schools by their parents. See, e.g., New Bedford submission to PRS, pages 11-13.

OSERS’ Analysis and Conclusions

OSERS concurs with PRS’s determination that the SEA did not exercise its general supervisory 

responsibilities as required by 20 U.S.C. §§ 1412(a)(11) and 1416(a) and 34 C.F.R. §§ 300.149 

and 300.600 to ensure LEAs complied with IDEA requirements related to children with 

disabilities enrolled by their parents in private schools (20 U.S.C. § 1412(a)(10)(A) and 34 

C.F.R. §§ 300.129 through 300.144). Further, until July 2018, the SEA’s guidance did not

instruct LEAs how to properly calculate the proportionate share of IDEA Part B funds. OSERS 

recognizes that even though DESE has taken steps to revise its oversight and monitoring 

processes, additional actions are necessary to demonstrate implementation of the IDEA 

requirements at both the SEA and LEA levels.

Required Actions

Within 90 days of the date of this letter, DESE must provide a written plan to OSERS that 

describes how the SEA will ensure that all of its LEAs meet the requirements in 20 U.S.C. § 

1412(a)(10)(A) and 34 C.F.R. §§ 300.129 through 300.144. DESE’s plan must include a 

description of the steps it will take to ensure that:

1. In accordance with 34 C.F.R. § 300.131, LEAs carry out their child find responsibilities 

with respect to parentally-placed private school children with disabilities. This includes 

resident and nonresident children who attend private schools located within the LEA and 

other children the State considers to be “parentally-placed private school children.” 

2. In accordance with 34 C.F.R. § 300.132(c), LEAs maintain an accurate record of children 

with disabilities enrolled by their parents in private elementary and secondary schools 

that will facilitate an accurate child count of such children. 

3. In accordance with 34 C.F.R. § 300.133, LEAs accurately calculate the proportionate 

share of IDEA Part B funds (both section 611 and 619 funds) that must be expended for 
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and Secondary Education

equitable services for parentally-placed private school children with disabilities. This 

includes reviewing and revising, as appropriate, the State’s written guidance to its LEAs 

and how the State will verify that LEA calculations are accurate.

4. In accordance with 34 C.F.R. § 300.134, LEAs conduct timely and meaningful 

consultation with private school representatives and representatives of parents of 

parentally-placed private school children with disabilities. In accordance with 34 C.F.R. § 

300.134, the discussions between public school officials and representatives of private 

schools and representatives of parents of parentally-placed private school children with 

disabilities must address:

a. The child find process and how parentally-placed private school children suspected of 

having a disability can participate equitably, including how parents, teachers, and 

private school officials will be informed of the process;

b. The determination of the proportionate share of IDEA Part B funds available to serve 

parentally-placed private school children with disabilities, including the 

determination of how the proportionate share of those funds was calculated;

c. How the consultation process among representatives of the LEA, the private schools, 

and the parents of parentally-placed private school children with disabilities will take 

place, including how the process will operate throughout the school year to 

ensure that parentally-placed private school children with disabilities identified 

through the child find process can meaningfully participate in special education and 

related services;

d. How, where, and by whom special education and related services will be provided, 

including a discussion of the types of services – including direct services and 

alternate service-delivery mechanisms, as well as how the services will be 

apportioned if funds are insufficient to serve all children – and how and when 

decisions regarding services will be made; and

e. How, if the LEA representatives disagree with the views of the private school 

officials on the provision of services or the types of services, (whether provided 

directly or through a contract), the LEA will provide to the private school officials a 

written explanation of the reasons why the LEA chose not to adopt the 

recommendations of the private school officials.

5. In accordance with 34 C.F.R. § 300.133, LEAs expend the required amount of IDEA Part 

B funds to provide special education and related services (including direct services) to 

parentally-placed private school children with disabilities. This includes ensuring that, 
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and Secondary Education

consistent with 34 C.F.R. § 300.133(d), any State and local funds supplement and in no 

case supplant the proportionate amount of IDEA Part B funds required to be expended for 

parentally-placed private school children with disabilities.

6. In accordance with 34 C.F.R. §§ 300.149 and 300.600, DESE monitors implementation 

of IDEA’s provisions related to children with disabilities enrolled by their parents in 

private schools, and that when DESE identifies noncompliance with those requirements, 

the noncompliance is corrected as soon as possible, and in no case later than one year 

after the State’s identification of the noncompliance as specified in 34 C.F.R. §

300.600(e).

The State’s plan must include a timeline for carrying out each action and a description of the 

evidence that will be used to demonstrate the action has been completed. To the extent the SEA 

has already taken steps, or has completed actions to address the noncompliance, it may include 

that information in its plan.

Additional Concern

During PRS’s resolution of the complaints against at least one LEA, the names and other 

personally identifiable information of certain children with disabilities were disclosed to the 

complainants. It is unclear whether the release of this information was made consistent with 

IDEA’s confidentiality provisions (20 U.S.C. §§ 1412(a)(8) and 1417(c) and 34 C.F.R. §§ 

300.611 through 300.626)) and the Family Educational Rights and Privacy Act (FERPA) (20 

U.S.C. § 1232g and its implementing regulations in 34 C.F.R. Part 99). OSERS requests that 

DESE review this matter and take any actions determined appropriate, to ensure that disclosures 

of personally identifiable information occur in a manner consistent with IDEA and FERPA.