The purpose of this memorandum is to clarify the responsibility of a local education agency (LEA) and a special education local plan area (SELPA) regarding the participation of charter schools in special education local plans.

Background

Legislation signed by Governor Davis in July of 1999 provides that, for the purpose of compliance with federal law and for eligibility for federal and state special education funds, a charter school shall be deemed a public school of the local education agency that authorized the charter, unless it is deemed a local education agency. Charter schools that are deemed a local education agency for the purpose of special education must participate in an approved special education local plan (SELPA) as an LEA.

A charter school that includes in its petition for establishment or renewal, or that otherwise provides, verifiable, written assurances that the charter school will participate as a local educational agency in a special education plan approved by the State Board of Education shall be deemed a local educational agency for the purposes of compliance with federal law (Individuals with Disabilities Education Act; 20 U.S.C. Sec. 1400 et seq.) and for eligibility for federal and state special education funds. A charter school that is deemed a local educational agency for the purposes of special education pursuant to this article shall be permitted to participate in an approved special education local plan that is consistent with subdivision (a), (b), or (c) of Section 56195.1. (E.C. 47641 (a), AB 1115, Chapter 78, Statutes of 1999)

Charter Schools as Public Schools of an LEA

In accordance with the federal Individuals with Disabilities Education Act as reauthorized in 1997, charter schools that are public schools of a local education agency must be treated fairly, and in the same manner as other public schools of that local education agency. That means that children with disabilities attending those charter schools shall be served in the same manner as children that attend other schools of that local education agency. Additionally, funds that are provided to those charter schools are to be provided in the same manner as funds that are provided to the other schools of the local education agency. Attached to this document, as a reference, is the listing of findings that when supported in writing by facts, are the reasons a charter petition can be denied by a governing board.

(5) Treatment of Charter Schools and Their Students. In carrying out this part with respect to charter schools that are public schools of the local educational agency, the local educational agency-

  (A) serves children with disabilities attending those schools in the same manner as it serves children with disabilities in its other schools; and
  (B) provides funds under this part to those schools in the same manner as it provides those funds to its other schools. (20 USC 1413 (a) (5))

The policies and procedures or bylaws of a SELPA shall not require a participating LEA to treat a charter school that acts as a public school, in a manner different from any other public school in that LEA. This includes a requirement to accept liability or responsibility for special education costs in a manner different from other schools in the local education agency. Charter schools shall not be required by a local education agency to be deemed a local education agency as a precondition of charter approval.

Charter Schools as LEA Members of a SELPA

If a charter school wishes to be deemed a LEA, while it is pursuing SELPA membership, it is to be considered a public school of the district which granted the charter. Until such time as the charter school obtains membership as a LEA of a SELPA, the local education agency that granted the charter shall be ultimately responsible for the services to students with disabilities attending that charter school.

Charter schools that wish to be deemed a local education agency and participate in an approved special education local plan must be treated in the same manner as other local education agencies in that SELPA.

An agency reviewing a request by a charter school to participate as a local educational agency in a special education local plan area may not treat the charter school differently from the manner in which it treats a similar request made by a school district. (E.C. 47644, AB 1115, Chapter 78, Statutes of 1999)

Charter schools that participate as LEAs in SELPAs are entitled to participate in the funding distribution model in the same manner as the other LEA members of the SELPA. For example, if a SELPA has risk pooling arrangements regarding high cost placements, charter schools that act as LEA members of the SELPA are entitled to benefit from these policies. Additionally, charter school local education agency members of the SELPA are entitled to equal participation in SELPA dispute resolution procedures.

Responsibility of the County Office of Education

Notwithstanding the participation in SELPA dispute resolution procedures, the County Office of Education has the responsibility to coordinate all local plans to ensure that all individuals residing within the county, including those enrolled in programs including but not limited to charter schools, have appropriate access to special education programs and related services. In instances where a charter school serves children residing in a county that is different from the county of the district that authorizes the charter, the County Office of Education where the district that authorizes the charter is located is responsible for ensuring that those charter school children have appropriate access to special education programs and related services.

County offices shall do all of the following:

(a) Initiate and submit to the superintendent a countywide plan for special education which demonstrates the coordination of all local plans. . . and which ensures that all individuals with exceptional needs residing within the county, including those enrolled in alternative education programs, including, but not limited to, alternative schools, charter schools, opportunity schools and classes, community day schools operated by school districts, community schools operated by county offices of education, and juvenile court schools, will have access to appropriate special education programs and related services. However, a county office shall not be required to submit a countywide plan when all the districts within the county elect to submit a single local plan.
(b) Within 45 days, approve or disapprove any proposed local plan submitted by a district or group of districts within the county or counties. Approval shall be based on the capacity of the district or districts to ensure that special education programs and services are provided to all individuals with exceptional needs.
   (1) If approved, the county office shall submit the plan with comments and recommendations to the superintendent.
   (2) If disapproved, the county office shall return the plan with comments and recommendations to the district. This district may immediately appeal to the superintendent to overrule the county office's disapproval. The superintendent shall make a decision on an appeal within 30 days of receipt of the appeal.
   (3) A local plan may not be implemented without approval of the plan by the county office or a decision by the superintendent to overrule the disapproval of the county office. (E.C. 56140)

Distribution of Federal Charter School Funding

Public Law 105-278 was enacted October 28, 1998. Known as the "Charter School Expansion Act of 1998", this law governs the allocation of federal funds to newly opened or significantly expanded charter schools. The regulations to implement this law did not become effective until January 21, 2000 (34 CFR Part 76). The law and regulations require that newly opened or significantly expanded charter school LEAs or schools be allocated funds within 5 months of opening or significantly expanding, if opened or significantly expanded before each February 1. Charter schools are to be funded as follows: (The provisions are summarized from the regulations, and each appropriate regulatory reference is cited).

1. At least 120 days before the date a charter school LEA is scheduled to open or significantly expand its enrollment, the charter school LEA or its authorized public chartering agency must provide written notification of that date, and any available data or information to estimate the amount of funds the charter school LEA may be eligible to receive. (Section 76.788)
2. For each eligible charter school LEA that opens or significantly expands its enrollment on or before November 1 of an academic year, the charter school LEA is to receive the proportionate amount of funds for which the charter school is eligible. These funds are to be allocated within five months of the date the charter school LEA opens or significantly expands its enrollment. (Section 76.793 (a))
3. For each eligible charter school LEA that opens or significantly expands its enrollment after November 1 but before February 1 of an academic year, the charter school LEA is to receive at least a pro rata portion of the proportionate amount of funds for which the charter school is eligible. These funds are to be allocated on or before the date funds are allocated for the succeeding academic year. (Section 76.793 (b) (1))
4. For the year the charter school LEA opens or significantly expands its enrollment, the eligibility determination may not be based on enrollment or eligibility data from a prior year, even if eligibility determinations for other LEAs under the program are based on enrollment or eligibility data from a prior year. (Section 76.796 (b))
5. Each LEA that is responsible for funding a charter school under a covered program must comply with the requirements on the same basis as state agencies are required to comply. In this case, all references in the law and regulations to state education agency must be read to refer to LEA, all references to charter school LEA must be read to refer to charter schools, and all references to LEA must be read to refer to public school. (Section 76.799)

The California Department of Education (CDE) is currently reviewing its procedures to ensure that funding is available to charter schools. The CDE will be providing additional information about this funding in the near future.

New Local Plan Criteria Regarding Charter Schools

The criteria for the total revision of local plans pursuant to IDEA '97 and AB 602 (Stats. 1997, c. 854) have been approved by the State Board of Education at the January, 2000, State Board meeting. The new local plan criteria require that the Governance Section of the local plan contains a description of the policies and procedures of the SELPA or county office of education that allow for the participation of charter schools that wish to be deemed local education agencies, in an approved special education local plan in that county. Pursuant to federal law (20

USC 1413 (a) (5)) charter schools can not be treated differently than any other LEA participating in the special education local plan. Additionally, included in the Governance Section of the local plan are a number of other new criteria that address the participation of charter schools and children with disabilities that attend them. These specific criteria include: the identification of the person responsible for the operation of special education programs and provision of services to students with disabilities in charter schools; the roles of the administrative unit and administrator of special education in relation to the provision of services to students with disabilities in charter schools; a system for determining the responsibility of participating agencies for the education of students attending charter schools in that SELPA; and a description of policies and procedures that contain evidence that the plan was developed cooperatively with input from representatives of charter schools operated within the SELPA.

Any question regarding the responsibility of charter schools to provide special education services or participate in a special education local plan should be directed to the Deborah Herrmann, in the Charter Schools Unit, at dherrmann@cde.ca.gov or at (916) 445-1014. Updated 03/26/04 - Go to CDE's Charter Schools, Laws, Regulations, & Policies web page at http://www.cde.ca.gov/sp/cs/lr/cspecedmar04.asp for question regarding the responsibility of charter schools to provide special education services or participate in a special education local plan.

Any question regarding the local plan criteria should be addressed to a regional Focused Monitoring and Technical Assistant Consultant in the Special Education Division. Consultants assignments by County and by Special Education Local Plan Area can be found at http://www.cde.ca.gov/spbranch/sed/fmtacnt.htm. Updated 03/26/04 - Locate and contact your Focused Monitoring and Technical Assistant Consultant in the Special Education Division at http://www.cde.ca.gov/sp/se/qa/documents/fmtacntct.pdf (PDF; 165KB; 4pp.) Updated 06/21/06 - on the Quality Assurance Process page for questions regarding the local plan criteria.