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U.S. Department of Education: Promoting Educational Excellence for all Americans

Subpart G--Authorization, Allotment, Use of Funds, and Authorization of Appropriations

Outlying areas, freely associated States, and the Secretary of the Interior (Sec. 300.701)[select]

Comment: None.

Discussion: The requirements of Part B of the Act that were listed in the NPRM under Sec. 300.701(a)(1)(ii)(A)(1) through (5) did not include all of the requirements that apply to freely associated States. To ensure that freely associated States do not interpret these regulations as including all of the requirements in Part B of the Act that apply to them, we are removing these provisions. Section 300.701(a)(1)(ii) and (2) clarifies that, consistent with section 611(b)(1)(A)(ii) of the Act, freely associated States must meet the applicable requirements that apply to States under Part B of the Act.

Changes: We have removed paragraphs (1) through (5) in Sec. 300.701(a)(1)(ii)(A).

Technical assistance (Sec. 300.702)[select]

Comment: One commenter requested that the regulations clarify whether the technical assistance funds referred to in Sec. 300.702 are available to both SEAs and lead agencies under Part C of the Act.

Discussion: Section 300.702, consistent with section 611(c) of the Act, allows the Secretary to reserve funds under Part B of the Act to support technical assistance activities authorized in section 616(i) of the Act. Under section 642 of the Act, section 616 applies to the early intervention programs for infants and toddlers with disabilities under Part C of the Act. Section 616(i) of the Act requires the Secretary to review the data collection and analysis capacity of States to ensure that data and information necessary for monitoring the implementation of Parts B and C of the Act are collected, analyzed, and accurately reported to the Secretary, and to provide technical assistance, as needed. Therefore the technical assistance referred to in Sec. 300.702 can be provided to both SEAs and lead agencies under Part C of the Act.

Changes: None.

Allocations to States (Sec. 300.703)[select]

Comment: A few commenters noted that States need additional funding to comply with these regulations.

Discussion: The Department does not have the authority to allocate more funds than Congress appropriates. Section 300.703, consistent with section 611(d) of the Act, describes how the appropriated funds must be distributed to States.

Changes: None.

State-level activities (Sec. 300.704)[select]

Comment: One commenter suggested adding language in the regulations requiring public agencies to provide technical assistance to personnel in residential treatment facilities. The commenter stated that this assistance would help residential treatment facilities meet the requirements of FAPE for the children they serve.

Discussion: Section 300.704(a)(1), consistent with section 611(e)(1) of the Act, allows, but does not require, States to use funds reserved for State administration to provide technical assistance to other programs that provide services to children with disabilities, which could include residential treatment facilities providing services to children with disabilities under the Act. Section 300.704(b)(4)(i), consistent with section 611(e)(2)(C)(i) of the Act, allows, but does not require, States to use funds reserved for other State-level activities to provide support and direct services, including technical assistance, personnel preparation, and professional development and training, which could include technical assistance to staff who provide services to children with disabilities at residential treatment centers and other such facilities. Because the Act gives States the discretion to determine how to use these funds, so long as they are used in accordance with the requirements in Part B of the Act, the Department does not believe it would be appropriate to remove this discretion by regulation and require States to use these funds to provide technical assistance to particular types of facilities, as suggested by the commenter.

Changes: None.

Comment: We received a number of comments requesting that the regulations require States to use funds reserved for State-level activities for specific purposes. Some commenters stated that these funds should be used to find and train surrogate parents. Other commenters requested that these funds be used to support parent centers. One commenter requested that these funds be used for programs that employ well-researched best practices. Another commenter suggested that the funds be used for family involvement activities. One commenter requested that the regulations clarify that these funds may be used to purchase supplemental educational materials.

Discussion: The Act does not require States to use their funds reserved for other State-level activities for the purposes requested by the commenters. The Act also does not prohibit the use of funds for these purposes. Instead, States have discretion in determining how these funds are used, so long as they are used to carry out the activities in Sec. 300.704(b)(3) and (4). Therefore, we do not believe it would be appropriate to regulate as suggested by the commenters.

Changes: None.

Comment: One commenter stated that the term "maximize" in Sec. 300.704(b)(4)(v), regarding the use of funds to support the use of technology to maximize accessibility to the general education curriculum, was an "affirmative duty" and, thus, required more detailed instruction. This commenter also stated that the term "improve" in Sec. 300.704(b)(4)(xi), regarding the use of funds to provide professional development to teachers who teach children with disabilities in order to improve academic achievement, was an "affirmative duty" and, thus, required more detailed instruction.

Discussion: The language referred to by the commenter is from the Act. The activities noted by the commenter are authorized under the Act but are not required. The Department has reviewed Sec. 300.704(b)(4)(v) and (b)(4)(xi) and does not believe that additional detail is necessary, because States need the flexibility that the Act provides to appropriately meet the needs within the State.

Changes: None.

Comment: One commenter agreed with the provision in Sec. 300.704(b)(4)(v) that allows States to use funds to support the use of technology to maximize access to the general education curriculum for children with disabilities. The commenter stated, however, that SEAs and LEAs would be unwilling to research and employ new technologies and asked who would be responsible for conducting this activity.

Discussion: Supporting the use of technology to maximize accessibility to the general education curriculum is a State-level activity that States are permitted, but not required, to fund. States have considerable flexibility in determining what State-level activities will be funded, provided the requirements of Part B of the Act are met. How a State implements a particular activity or program is a matter best left to each State to decide.

Changes: None.

Comment: One commenter stated that Sec. 300.704(b)(4)(v), regarding the use of technology to maximize accessibility to the general education curriculum for children with disabilities, lacked specificity and asked for definitions of the terms "universal design principles," "maximize accessibility to the general curriculum," and "maximum extent."

Discussion: The definition of universal design, as used in the Assistive Technology Act of 1998, as amended, is included in the Analysis of Comments and Changes section for subpart A. We believe this will clarify the meaning of "universal design principles," as used in Sec. 300.704(b)(4)(v). The term "maximize accessibility to the general education curriculum" is sufficiently specific in the context used and does not need further definition. The term "maximum extent" is not used in Sec. 300.704(b)(4)(v).

Changes: None.

Local educational agency high cost fund (Sec. 300.704(c))[select]

Comment: One commenter expressed concern that the regulations for the high cost fund, particularly the reference to the cost of room and board for a residential placement, would discourage educational placements in the LRE. The commenter stated that many children with disabilities are sent out of their school districts for special education and related services and asked that the regulations ensure that this practice does not increase.

Discussion: The language regarding room and board in Sec. 300.704(c)(4)(ii) was included to clarify that the cost of room and board for a necessary residential placement could be supported by the high cost fund. Section Sec. 300.704(c)(4)(ii) clarifies that the cost of room and board for a residential placement must be determined necessary and be consistent with the LRE requirements in Sec. 300.114. We believe this is adequate to ensure that educational placements in the LRE are not discouraged.

Changes: None.

Comment: One commenter stated that reimbursements from a high cost fund would be difficult to compute and requested a template to assist LEAs in their calculations. Another commenter requested a list of specific procedures that would be excluded from coverage by a high cost fund.

Discussion: How States implement the high cost fund is a matter left to the discretion of each State, so long as the State meets the requirements of Part B of the Act. Accordingly, the Department does not believe it would be appropriate to develop a template, prepared at the Federal level, or a list of specific procedures that would be excluded from coverage. Whether a particular expenditure is appropriate will vary with the specific facts and circumstances of the situation.

Changes: None.

Comment: One commenter asked whether high cost funds could be used for court-ordered placements.

Discussion: Nothing in the Act or the regulations prohibits payment for providing special education and related services to high need children with disabilities in court-ordered placements, if a State wishes to fund such placements and the other provisions of Part B of the Act are met.

Changes: None.

Comment: A few commenters requested that the regulations include plans for continuing programs funded by high cost funds should these funds become unavailable.

Discussion: The availability of Federal support for a high cost fund, as described in Sec. 300.704(c) and section 611(e)(3) of the Act, is based on a number of factors, including continued Federal appropriations for the Grants to States program and the continued authorization for such a fund under the Act. Funding of a high cost fund in a particular State is dependent on a State's decision to use a portion of its State-level set-aside for a high cost fund. This is a matter of State discretion and is not appropriate for regulation at the Federal level.

Changes: None.

Comment: A few commenters requested an opportunity for public comment before a State implements a high cost fund.

Discussion: Section 300.704(c)(3)(i), consistent with section 611(e)(3)(C)(ii) of the Act, requires an SEA to develop, annually review, and amend, as necessary, a State plan for a high cost fund. Under Sec. 300.704(c)(3)(i)(A), the State plan must, among other components, establish, in consultation and coordination with representatives from LEAs, a definition of a high need child with a disability that meets certain criteria. This plan must be developed no later than 90 days after the State reserves funds for a high cost fund. Section 300.704(c)(3)(ii), consistent with section 611(e)(3)(C)(iii) of the Act, requires a State to make its final State plan for the high cost fund available to the public not less than 30 days before the beginning of the school year, including dissemination of such information on the State's Web site. Although there is nothing in the Act that requires that the public be given the opportunity to comment on the State's plan, there also is nothing in the Act that would prohibit a State from providing an opportunity for public comment prior to finalizing the State's plan for the high cost fund. We believe the decision to provide opportunity for public comment is best left to each State.

Changes: None.

Comment: A few commenters asked if LEAs are obligated to participate in the State Medicaid program and whether States could limit the types of reimbursement to LEAs from Medicaid.

Discussion: LEAs are not obligated under the Act to participate in a State Medicaid program. Title XIX of the Social Security Act of 1965, as amended, controls Medicaid reimbursement for medical assistance for eligible individuals and families with low incomes and resources. Therefore, it would not be appropriate to address in these regulations whether States, under the Act, could limit the type of Medicaid reimbursement to LEAs.

Changes: None.

Comment: One commenter asked if there was any intent to develop criteria for the development of innovative cost sharing consortia, as stated in Sec. 300.704(c)(1)(i)(B). The commenter stated that there are no regulations for submitting a State plan for innovative cost-sharing consortia, similar or parallel to the requirements associated with the high cost fund.

Discussion: The commenter is correct that the proposed regulations would not require the development of a State plan for the high cost fund that includes information or criteria about the development of innovative cost-sharing consortia. It is important that, if a State elects to reserve funds for supporting innovative and effective ways of cost sharing under Sec. 300.704(c)(1)(i)(B), the State, in its State plan under Sec. 300.704(c)(3)(i), include a description of how those funds will be used. Therefore, a change will be made to make this clear.

Changes: A new paragraph (F) has been added to Sec. 300.704(c)(3)(i) to clarify that, if a State elects to reserve funds for supporting innovative and effective ways of cost sharing, it must describe in its State plan how these funds will be used.

Comment: One commenter asked whether State administrative funds could be used for administering the high cost fund.

Discussion: Section 300.704(c)(2) is clear that a State cannot use any of the funds the State reserves for the high cost fund for costs associated with establishing, supporting, and otherwise administering the fund. However, a State may use funds reserved for State administration under Sec. 300.704(a) for administering the high cost fund.

Changes: None.

Comment: One commenter requested that the regulations require an SEA to describe in its State plan for the high cost fund the ways in which the SEA will work with State child welfare programs.

Discussion: Section 300.704(c)(3) incorporates the language in section 611(e)(3)(C) of the Act, regarding a State plan for the high cost fund. The Act does not require that the State plan include the ways in which the SEA will work with State child welfare agencies. However, there is nothing in the Act or these regulations that would prohibit a State from including such information in its plan if it chooses to do so. We believe that the decision whether to include this information in the State plan for the high cost fund is a matter best left to the State.

Changes: None.

Comment: A few commenters stated that parents, representatives of the State Advisory Panel, and other stakeholders should participate in developing the definition of a high need child for the purposes of the high cost fund.

Discussion: Section 300.704(c)(3)(i)(A), consistent with section 611(e)(3)(C)(i) of the Act, requires the SEA to establish a State definition of a high need child with a disability in consultation with LEAs. The Act does not require the involvement of parents, representatives of the State Advisory panel, or other stakeholders. However, there is nothing in the Act or these regulations that would prohibit a State from consulting with these or other groups, if the State chooses to do so. The Department believes that it would be inappropriate to require SEAs to consult with specific groups, because the appropriate groups for consultation will vary from State to State.

Changes: None.

Flexibility in using funds for Part C (Sec. 300.704(f))[select]

Comment: A few commenters requested that Sec. 300.704(f) require States that offer early intervention services to children with disabilities who are eligible for services under section 619 of the Act to notify families of the details of this program and a parent's right to change immediately to special education services should the parent desire. Another commenter recommended that Sec. 300.704(f) require LEAs to obtain parental consent before providing early intervention services to children eligible for services under section 619 of the Act.

Discussion: Section 300.704(f) adopts the requirements of, and is consistent with, section 611(e)(7) of the Act. Under section 611(e)(7) of the Act, funds that are available under Sec. Sec. 300.704(a)(1), 300.705(c), and 300.814(e) may be used to develop and implement a State policy to provide services under Part C of the Act to children beyond the age of three. The provisions that authorize such programs are reflected in Part C of the Act, predominantly in section 635(c) of the Act, which contains specific notice and consent requirements. The notice of proposed rulemaking for Part C of the Act will address the notice, consent, and other requirements that apply to State lead agencies that elect to offer services to children with disabilities and their families beyond the age of three under section 635(c) of the Act. The public will have a separate opportunity to comment on the proposed regulations for Part C of the Act when they are published in the Federal Register. Accordingly, it would not be appropriate to include the requested information in these regulations implementing Part B of the Act.

Changes: None.

Subgrants to LEAs (Sec. 300.705(a)) [select]

(originally published on December 1, 2008 – 73 FR 73006; effective date – July 1, 2009)

Comment: A few commenters supported the proposed changes to Sec. 300.705(a) clarifying that States are required to make a subgrant under section 611(f) of the Act to eligible LEAs, including public charter schools that operate as LEAs, even if the LEA is not serving any children with disabilities, because all LEAs have a responsibility to identify and provide services to children with disabilities. The commenters stated that the Department should ensure that a newly created LEA not serving any children with disabilities in the first year would still be eligible for some IDEA funds (e.g., based on enrollment and the number of students in poverty) to allow the new LEA to conduct child find activities and serve any students who are identified as eligible for special education services later in the year.

Some commenters opposed this provision and recommended that given the current level of IDEA Federal funding, funds should be used for direct services for students who are currently eligible for special education and related services. Additionally, one of these commenters expressed concern that Sec. 300.705(a) would require revising current State and local funding processes, which would place accounting and administrative burdens on both State and local systems. A few commenters stated that the proposed change to Sec. 300.705(a) is unnecessary because States have been successful in ensuring that small school districts receive allocations when they enroll a student with a disability. Lastly, one commenter suggested that the proposed changes could be handled through administrative guidance, rather than regulations.

Discussion: Section 300.705(a), consistent with section 611(f)(1) of the Act, requires each State to provide subgrants to LEAs, including public charter schools that operate as LEAs in the State, that have established their eligibility under section 613 of the Act. Section 613(a) of the Act states that an LEA is eligible for assistance under Part B of the Act for a fiscal year if the LEA submits a plan that provides assurances to the SEA that the LEA meets each of the conditions in section 613(a) of the Act. There is no requirement in section 613(a) of the Act that an LEA must be serving children with disabilities for an LEA to be eligible for a subgrant. Requiring States to make a subgrant to all eligible LEAs, including public charter schools that operate as LEAs, will ensure that LEAs have Part B funds available if they are needed to conduct child find activities or to serve children with disabilities who subsequently enroll or are identified during the year. Regardless of the level of funding made available for the Part B program under the Act, neither the Act nor the implementing regulations require that Part B funds be spent only for direct services for students who are currently eligible for special education and related services. As in the past, LEAs may use Part B funds for direct services to children with disabilities or for other permissible activities, such as child find, professional development, and more recently, for coordinated early intervening services in accordance with Sec. 300.226.

The Grants to States and Preschool Grants for Children with Disabilities Programs are forward-funded programs and LEAs generally receive a subgrant at the beginning of the school year to cover the costs of providing special education and related services to children with disabilities during the school year. Ensuring that all LEAs, including those that have no children with disabilities enrolled at the beginning of the school year, have section 611 and section 619 funds available will enable LEAs to meet their responsibilities under the Act during the school year if a child with a disability subsequently enrolls or a child is subsequently identified as having a disability.

We understand the commenter's concern that this change in the regulations may require States to revise their procedures for distributing Part B funds, and that there may be some administrative burden associated with these changes. However, the importance of ensuring consistency across States concerning the distribution of section 611 and section 619 funds outweighs the potential administrative burden. As previously stated in this preamble, making these funds available to LEAs is critical to ensure that each LEA is able to fulfill its responsibilities under the Act. We agree with commenters that some States have been successful in ensuring small LEAs receive allocations when they enroll students with disabilities after the school year has begun. However, given that the Act and the implementing regulations are silent on whether an SEA must make a subgrant to an LEA that is not serving any children with disabilities, clarification is necessary in Sec. Sec. 300.705(a) and 300.815 to remove any ambiguity in this regard. Revising the regulations, rather than remaining silent on the issue or issuing guidance, will ensure that all States treat LEAs in the same manner, including those LEAs that are not serving any children with disabilities, when allocating Part B funds.

Changes: None.

Comment: A few commenters recommended that the proposed regulations be modified to give States the option of making subgrants to eligible LEAs, including public charter schools that operate as LEAs, when an LEA is not currently serving any students with disabilities. The commenters stated that States have different needs and some have policies in place to help new charter schools meet their child find obligations.

Discussion: We recognize that States are in a unique position to assist new LEAs, including charter schools that operate as LEAs. However, requiring States to make a subgrant under section 611(f) and section 619(g) of the Act to eligible LEAs, including public charter schools that operate as LEAs, even if the LEA is not serving any children with disabilities, ensures consistency across States and an equitable distribution of Part B funds. We also recognize that some States may not assign child find responsibility to public charter schools that operate as LEAs. However, all LEAs, including public charter schools that operate as LEAs, have other responsibilities under the IDEA that may need to be carried out during the school year, such as serving a child with a disability who is identified during the school year. It is the Department's position that it is necessary to require States to make (rather than give them the option of making) subgrants to eligible LEAs not currently serving any students with disabilities, to ensure that all States treat LEAs in the same manner, including those LEAs that are not serving any children with disabilities, when allocating Part B funds.

Changes: None.

Comment: One commenter recommended that the Department withdraw the proposed changes and add, if necessary, a new paragraph in Sec. Sec. 300.705 and 300.815 that would allow a new or expanded charter school to receive an allocation under Sec. Sec. 300.705 and 300.815, respectively, if the school demonstrates to the SEA that the school is serving children with disabilities in accordance with the requirements of Part B of the Act within the time frame established by the SEA under 34 CFR 76.788(b)(2)(i), which provides that once a charter school LEA has opened or significantly expanded its enrollment, the charter school LEA must provide actual enrollment and eligibility data to the SEA at a time the SEA may reasonably require.

Discussion: We do not agree that the change suggested by the commenter is necessary. An eligible public charter school LEA has the responsibility to meet the requirements of the Act during the school year regardless of whether the LEA is serving children with disabilities at the time the subgrant is calculated based on actual enrollment and eligibility data. In recognition of these responsibilities, requiring an SEA to make an initial subgrant to a new or expanded public charter school LEA is appropriate, even if it is not serving any children with disabilities at the time actual enrollment and eligibility data are provided to the SEA.

Changes: None.

Reallocation of LEA Funds (Sec. 300.705(c)) [select]

Comment: One commenter supported proposed Sec. 300.705(c). Another commenter requested clarification as to the types of activities that could be supported with the Part B funds that an LEA does not need to provide FAPE, if a State chooses to retain the funds, instead of reallocating the funds to other LEAs in the State. One commenter recommended that the State be authorized to reallocate the funds intended to be allocated to an LEA or retain them for State-level activities only after consulting with the LEA to assess the LEA's needs and after determining that the LEA does not need the funds.

Discussion: A State, under Sec. 300.705(c), may use funds from an LEA that does not need the funds for any allowable activities permitted under Sec. 300.704, to the extent that the State has not reserved the maximum amount of funds it is permitted to reserve for State-level activities pursuant to Sec. 300.704(a) and (b). To the extent the State has not reserved the maximum amount for administration, the State may use those funds for administrative costs consistent with Sec. 300.704(a). To the extent the State has not reserved the maximum amount of funds available for other State-level activities, the State may use those funds for any allowable activities permitted under Sec. 300.704(b)(3) and (4) including, but not limited to, technical assistance, personnel preparation, and assisting LEAs in providing positive behavioral interventions and supports. Additionally, if the State has opted to finance a high-cost fund under Sec. 300.704(c) and has not reserved the maximum amount available for the fund, the State may use those funds for the LEA high-cost fund consistent with Sec. 300.704(c).

In response to the commenter that recommended that the State be permitted to reallocate funds only after consulting with the LEA to assess the LEA's needs, nothing in these regulations prohibits a State from working with an LEA to assess the needs of the LEA before determining that the LEA will not be able to use the funds prior to the end of the carryover period. However, we believe it would be burdensome and unnecessary to require that an SEA consult with an LEA to assess the LEA's needs prior to a reallocation of the LEA's remaining unobligated funds. The LEA would have already had sufficient time and incentive during the carryover period of availability to assess its own needs and make appropriate obligations for needed expenditures.

Changes: None.

Allocation for State in which by-pass is implemented for parentally-placed private school children with disabilities (Sec. 300.706)[select]

Comment: None.

Discussion: We have determined that Sec. 300.706 is no longer applicable. Under section 611(d) of the Act, distribution of funds under Part B of the Act to States is not based on child count. Section 300.191 details the amount of funds under Part B of the Act that the Secretary deducts from a State's allocation if a by-pass is implemented.

Changes: We have removed Sec. 300.706, because it is no longer applicable.

Use of amounts by Secretary of the Interior (Sec. 300.707)[select]

Definitions (Sec. 300.707(a))[select]

Comment: A few commenters requested that the Department add a new definition of LEA and SEA for the purposes of regulations related to schools operated or funded by the Secretary of the Interior. One commenter stated that the regulations would be clearer if these terms were defined for BIA-funded schools, because the definition of state educational agency makes no mention of the BIA. Another commenter recommended defining LEAs as BIA-funded schools and defining SEA as the Secretary of the Interior for the purposes of regulations related to schools operated or funded by the Secretary of the Interior.

Discussion: We believe the definition of local educational agency in Sec. 300.28, with a specific reference to BIA-funded schools in Sec. 300.28(c), and the definition of State educational agency in Sec. 300.41, along with the requirements in Sec. Sec. 300.707 through 300.716, provide sufficient clarity on the Secretary of the Interior's responsibilities to implement the requirements of the Act. However, we understand that the definitions of local educational agency and State educational agency by themselves may not be directly applicable to the regulations related to schools operated or funded by the Secretary of the Interior. Therefore, the Department will consider taking action to clarify the definitions of local educational agency and State educational agency for the purpose of this regulation in the future.

Changes: None.

Comment: One commenter stated that the definition of tribal governing body of a school is similar to the definition of "tribal governing body" in the principal statute governing BIA-funded schools (section 1141 of the Education Amendments of 1978, 25 U.S.C. 2021(19)) and suggested using that definition if the intent was to define "tribal governing body." The commenter also noted that tribal governing body of a school is not used anywhere in the regulations.

Discussion: The Department agrees that the definition of "tribal governing body" in 25 U.S.C. 2021(19) is a better definition than the definition of tribal governing body of a school. The definition is more accurate and defines a term used in these regulations. We are replacing the definition of tribal governing body of a school with the definition of tribal governing body, as defined in 25 U.S.C. 2021(19): Tribal governing body means, with respect to any school, the tribal governing body, or tribal governing bodies, that represent at least 90 percent of the children served by such school.

Changes: The definition of tribal governing body of a school in Sec. 300.707(a)(2) has been replaced with the definition of tribal governing body from 25 U.S.C. 2021(19).

Provision of amounts for assistance (Sec. 300.707(b))[select]

Comment: One commenter suggested adding specific language to the regulations to require the Secretaries of the Interior and Education to meet the statutory deadlines for providing and distributing funds under Part B of the Act.

Discussion: Section 300.707(b), consistent with section 611(h)(1)(A) of the Act, sets specific dates for the Secretary of the Interior to allocate funds provided to the Secretary of the Interior under the Act to elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior. The Secretary of the Interior must allocate 80 percent of these funds by July 1 of each fiscal year, and the remaining 20 percent by September 30 of each fiscal year. The Act does not require the Secretary of Education to meet any deadline for providing and distributing funds to the Secretary of the Interior. Provision of funds under Part B of the Act to the Department of the Interior (DOI) will always depend on whether the DOI has properly established and maintained its eligibility. Therefore, we do not believe it would be appropriate to establish such a deadline.

Changes: None.

Comment: One commenter stated that BIA-funded schools do not require State accreditation and asked how a program affiliated with a BIA-funded school could be mandated by the State to be accredited.

Discussion: The commenter appears to be referring to current Sec. 300.715(c), regarding counting children aged three through five who are enrolled in programs affiliated with BIA-funded schools that are State accredited. Current Sec. 300.715(c) was removed because a State can no longer require a BIA-funded school to attain or maintain State accreditation.

Changes: None.

Comment: A few commenters recommended revising Sec. 300.707(c) to clarify that, for children living on reservations who do not attend BIA-funded schools, the SEA in which the reservation is located is responsible for ensuring that the requirements of Part B of the Act are implemented, and if the reservation is in more than one State, the SEA in which the child resides is responsible.

Discussion: The Department agrees that there is a need to clarify that States are responsible for serving Indian children on reservations located in their State who are not attending BIA-funded schools. We will revise Sec. 300.707(c) to clarify that, for children on reservations who do not attend BIA-funded schools, the State in which the reservation is located must ensure that all the requirements of Part B of the Act are implemented.

The Act does not address who is responsible if a reservation is located in more than one State. Under section 612(a)(1)(A) of the Act, a State must make FAPE available to all children with disabilities residing in the State. Therefore, as a general matter, if a reservation is located in more than one State, the State in which the child resides would be responsible for ensuring that the requirements of Part B of the Act are met for that child.

Changes: Section 300.707(c) has been revised to clarify that, for children on reservations who do not attend BIA-funded schools, the State in which the reservation is located must ensure that all the requirements of Part B of the Act are met.

Use of funds under Part B of the Act (Sec. 300.710(a))[select]

Comment: One commenter stated that the Secretary of the Interior has no statutory authority to reserve funds for administration under section 611(h)(1)(A) of the Act, and therefore, Sec. 300.710 should be removed from the regulations.

Discussion: The Secretary of the Interior may reserve funds for administration under Sec. 300.710. Section 300.707(b), consistent with section 611(h)(1)(A) of the Act, requires the Secretary of Education to provide amounts to the Secretary of the Interior to meet the need for assistance for the education of children with disabilities on reservations aged 5 to 21, inclusive, enrolled in elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior. The amount of such payment for any fiscal year must be equal to 80 percent of the amount allotted for the Secretary of the Interior under section 611(b)(2) of the Act for that fiscal year.

Since the enactment of regulations implementing P.L. 94-142 in 1977, the regulations have permitted the Secretary of the Interior to use five percent of the funds under Part B of the Act allocated for the education of children with disabilities enrolled in BIA-funded schools for administration. The Act added the requirement in section 611(h)(1)(A) for 80 percent of the funds to be allocated to BIA-funded schools by July 1 of each fiscal year, and 20 percent of the funds allocated by September 30 of each fiscal year. Congress' intent in adding this requirement was to ensure that the Secretary of the Interior distributes funds under Part B of the Act quickly and efficiently to BIA-funded schools to ensure that they have the resources they need to provide services to children with disabilities. (See H. Rpt. 108-77, p. 92.)

There is no indication that Congress intended to eliminate the Department's longstanding regulatory provision permitting the Secretary of the Interior to reserve funds for administration, which assist the Office of Indian Education Programs in carrying out its monitoring activities. Section 611(h)(4)(F) of the Act specifically prohibits the Secretary of the Interior from using any of the 20 percent of the funds under Part B of the Act allocated for coordinating services for preschool children with disabilities for administrative purposes. However, there is no provision that prohibits the Secretary of the Interior from using any of the 80 percent of funds under Part B of the Act allocated to provide special education and related services in BIA-funded schools for administrative purposes.

Changes: None.

Early intervening services (Sec. 300.711)[select]

Comment: One commenter supported permitting BIA-funded schools to use funds under Part B of the Act for early intervening services, but stated that not all BIA-funded schools receive funds under Part B of the Act, because the BIA will not provide any such funds until a school uses 15 percent of its Indian School Equalization Program funds (ISEP). The commenter requested that the regulations specify that BIA-funded schools are permitted and encouraged to use their ISEP funds to provide early intervening services and that schools, upon doing so, would be eligible for funds under Part B of the Act.

Discussion: While the Act requires that the Secretary of the Interior allocate funds under Part B of the Act to BIA-funded schools to meet the educational needs of children with disabilities, the Act does not establish requirements for how those funds must be distributed to BIA-funded schools. The Secretary of the Interior requires that BIA-funded schools use 15 percent of ISEP formula funds for special education services before receiving funds under Part B of the Act. While the Department understands the concern that not every BIA-funded school will have special education needs sufficient to meet the 15 percent threshold and, therefore, may not receive any funds under Part B of the Act, the Department does not have the authority to permit or encourage BIA-funded schools to use their 15 percent ISEP threshold funds to provide early intervening services or to require the Secretary of the Interior to provide Part B funds to those schools once they have spent 15 percent of their ISEP funds on early intervening services.

Changes: None.

Plan for coordination of services (Sec. 300.713)[select]

Comment: One commenter stated that the requirements in Sec. 303.713 go beyond the legal authority of the Secretary of the Interior. The commenter stated that the Secretary of the Interior provides services only in BIA-funded schools, and the Office of Indian Education Programs does not have jurisdiction over a State to ensure that the State is providing services to Indian children under Part B of the Act. In addition, the commenter stated that the term "all Indian children" was too broad, because the Secretary of the Interior is authorized to provide funding only for programs for children who are at least one-fourth Indian blood of a federally recognized tribe; residing on or near a reservation; and enrolled in a BIA-funded school.

Discussion: Section 300.713(a) and section 611(h)(5) of the Act do not require the Secretary of the Interior to provide services or funding to Indian children who are not at least one-fourth Indian blood of a federally recognized tribe, residing on or near a reservation, and enrolled in a BIA-funded school. These sections require the Secretary of the Interior to develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations covered under Part B of the Act. In order to clarify the Secretary of the Interior's responsibility under this provision, we are revising Sec. 300.713(a) to clarify that reservations covered under Part B of the Act means reservations served by elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior.

Section 300.713(a) and section 611(h)(5) of the Act require that the plan address the coordination of services for all Indian children residing on those reservations. This includes Indian children residing on those reservations that are enrolled in public schools in the local school district, as well as Indian children that are enrolled in BIA-funded schools. This also includes Indian students incarcerated in State, local, and tribal juvenile and adult correctional facilities. We are revising Sec. 300.713(b) to ensure that the plan provides for coordination of services benefiting all Indian children with disabilities, including services provided by SEAs and State, local, and tribal juvenile and adult correctional facilities.

Changes: Section 300.713(a) has been revised to require the Secretary of the Interior to develop and implement a plan for the coordination of services for all Indian children with disabilities residing on reservations served by elementary schools and secondary schools for Indian children operated or funded by the Secretary of the Interior. Section 300.713(b) has been revised to require the plan to provide for the coordination of services benefiting these children from whatever source, including SEAs, and State, local, and tribal juvenile and adult correctional facilities.

Establishment of advisory board (Sec. 300.714)[select]

Comment: One commenter requested definitions of "collaboration" and "collaborated teachers."

Discussion: We do not believe it is necessary to define "collaboration" in these regulations, because it is a commonly used term, which means working jointly with others, especially in an intellectual endeavor. Although the Act does not prohibit the Department from regulating on this issue, we do not believe it is necessary. The term "collaborated teachers" is not used in the Act or these regulations and, thus, is not appropriate for inclusion in the definitions in these regulations.

Changes: None.