34 C.F.R. Subpart D—Payments Under Section 8003(d) of the Act for Local Educational Agencies That Serve Children With Disabilities
Title 34 - Education
In addition to the terms referenced or defined in §222.2, the following definitions in 20 U.S.C. 1401 or 34 CFR §77.1 apply to this subpart: Children with disabilities means children— (1)(i) With mental retardation, hearing impairments including deafness, speech or language impairments, visual impairments including blindness, serious emotional disturbance, orthopedic impairments, autism, traumatic brain injury, other health impairments, or specific learning disabilities; and (ii) Who, by reason thereof, need special education and related services. (2) The term children with disabilities for children aged 3 to 5, inclusive, may, at a State's discretion, include children— (i) Experiencing developmental delays, as defined by the State and as measured by appropriate diagnostic instruments and procedures, in one or more of the following areas: physical development, cognitive development, communication development, social or emotional development, or adaptive development; and (ii) Who, by reason thereof, need special education and related services. Children with specific learning disabilities means children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. These disorders include conditions such as perceptual disabilities, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. This term does not include children who have learning problems which are primarily the result of visual, hearing, or motor disabilities, of mental retardation, of emotional disturbance, or of environmental, cultural, or economic disadvantage. Free appropriate public education means special education and related services that— (1) Have been provided at public expense, under public supervision and direction, and without charge; (2) Meet the standards of the State educational agency; (3) Include an appropriate preschool, elementary, or secondary school education in the State involved; and (4) Are provided in conformity with the individualized education program (IEP) required under section 1414(a)(5) of the Individuals with Disabilities Education Act. Individualized education program (IEP) means— (1) A written statement for each child with a disability developed in any meeting by a representative of the LEA or an intermediate educational unit who shall be qualified to provide, or supervise the provision of, specially designed instruction to meet the unique needs of children with disabilities, the teacher, the parents or guardian of the child, and whenever appropriate, the child, which statement must include— (i) A statement of the present levels of educational performance of the child; (ii) A statement of annual goals, including short-term instructional objectives; (iii) A statement of the specific educational services to be provided to the child, and the extent to which the child will be able to participate in regular educational programs; (iv) A statement of the needed transition services for students beginning no later than age 16 and annually thereafter (and, when determined appropriate for the individual, beginning at age 14 or younger), including, when appropriate, a statement of the interagency responsibilities or linkages (or both) before the student leaves the school setting; (v) The projected date for initiation and anticipated duration of these services; and (vi) Appropriate objective criteria and evaluation procedures and schedules for determining, on at least an annual basis, whether instructional objectives are being achieved. (2) In the case where a participating agency, other than the educational agency, fails to provide agreed upon services, the educational agency shall reconvene the IEP team to identify alternative strategies to meet the transition objectives. Intermediate educational unit means any public authority, other than an LEA, that is under the general supervision of a State educational agency, that is established by State law for the purpose or providing free public education on a regional basis, and that provides special education and related services to children with disabilities within that State. Preschool means the educational level from a child's birth to the time at which the State provides elementary education. Related services means transportation and those developmental, corrective, and other supportive services (including speech pathology and audiology, psychological services, physical and occupational therapy, recreation, including therapeutic recreation, social work services, counseling services, including rehabilitation counseling, and medical services, except that medical services must be for diagnostic and evaluation purposes only) as may be required to assist a child with a disability to benefit from special education, and includes the early identification and assessment of disabling conditions in children. Special education means specially designed instruction, at no cost to parents or guardians, to meet the unique needs of a child with a disability, including— (1) Instruction conducted in the classroom, in the home, in hospitals and institutions, and in other settings; and (2) Instruction in physical education. (Authority: 20 U.S.C. 1401, 7703, 7705, 7713; 37 U.S.C. 101) (a) Except as provided in paragraph (b)(2) of this section, the children described in sections 8003(a)(1)(A)(ii), (a)(1)(B), (a)(1)(C), and (a)(1)(D) of the Act who are eligible for services under the provisions of the Individuals with Disabilities Education Act (20 U.S.C. 1400 et seq.) may be counted by the local educational agency (LEA) for the purpose of computing a payment under section 8003(d). (b)(1) An LEA may count a child or children described in paragraph (a) of this section who attend private schools or residential programs if the LEA has placed or referred the child or children in accordance with the provisions of section 613 of the Individuals with Disabilities Education Act, 20 U.S.C. 1400 et seq. and 34 CFR part 300, subparts C and D. (2) Children who are placed in private schools by their parents may not be counted under section 8003(d), but may participate in public school programs that use section 8003(d) funds. (Authority: 20 U.S.C. 1400 et seq. and 7703(d)) To receive a payment under section 8003(d), an eligible LEA shall— (a) State in its application the number of federally connected children with disabilities it claims for a payment under section 8003(d); (b) Have in effect a written IEP for each federally connected child with disabilities claimed for a payment under section 8003(d); and (c) Meet the requirements of subparts A and C of the regulations in this part. (Authority: 20 U.S.C. 1400 et seq. and 7703) (a) An LEA shall use funds provided under section 8003(d) in accordance with the provisions of section 8003(d)(2) and 34 CFR part 300. (b) Obligations and expenditures of section 8003(d) funds may be incurred in either of the two following ways: (1) An LEA may obligate or expend section 8003(d) funds for the fiscal year for which the funds were appropriated. (2) An LEA may reimburse itself for obligations or expenditures of local and general State aid funds for the fiscal year for which the section 8003(d) funds were appropriated. (c) An LEA shall use its section 8003(d) funds for the following types of expenditures: (1) Expenditures that are reasonably related to the conduct of programs or projects for the free appropriate public education of federally connected children with disabilities. These expenditures may include program planning and evaluation but may not include construction of school facilities. (2) Acquisition cost (net invoice price) of equipment required for the free appropriate public education of federally connected children with disabilities. (i) If section 8003(d) funds are used for the acquisition of any equipment described in this paragraph (c)(2) of this section, the fair market value of any financial advantage realized through rebates, discounts, bonuses, free pieces of equipment used in a program or project for the free appropriate public education of federally connected children with disabilities, or other circumstances, is not an allowable expenditure and may not be credited as an expenditure of those funds. (ii) Funds awarded under the provisions of section 8003(d) may be used to acquire equipment for the free appropriate public education of the federally connected children with disabilities only if title to the equipment would be in the applicant agency. (d) An LEA shall account for the use of section 8003(d) funds as follows: (1) By recording, for each fiscal year, the receipt (or credit) of section 8003(d) funds separately from other funds received under the Act, i.e., on a line item basis in the general fund account or in a separate account; and (2) By demonstrating that, for each fiscal year, the amount of expenditures for special education and related services provided to the federally connected children with disabilities is at least equal to the amount of section 8003(d) funds received or credited for that fiscal year. This is done as follows: (i) For each fiscal year determine the amount of an LEA's expenditures for special education and related services provided to all children with disabilities. (ii) The amount determined in paragraph (d)(2)(i) of this section is divided by the average daily attendance (ADA) of the total number of children with disabilities the LEA served during that fiscal year. (iii) The amount determined in paragraph (d)(2)(ii) of this section is then multiplied by the total ADA of the LEA's federally connected children with disabilities claimed by the LEA for that fiscal year. (3) If the amount of section 8003(d) funds the LEA received (or was credited) for the fiscal year exceeds the amount obtained in paragraph (d)(2)(iii) of this section, an overpayment equal to the excess section 8003(d) funds is established. This overpayment may be reduced or eliminated to the extent that the LEA can demonstrate that the average per pupil expenditure for special education and related services provided to federally connected children with disabilities exceeded its average per pupil expenditure for serving non-federally connected children with disabilities. (Authority: 20 U.S.C. 7703(d)) Funds provided under section 8003(d) may not supplant any State funds that were or would have been available to the LEA for the free appropriate public education of children counted under section 8003(d). (a) No section 8003(d) funds may be paid to an LEA whose per pupil State aid for federally connected children with disabilities, either general State aid or special education State aid, has been or would be reduced as a result of eligibility for or receipt of section 8003(d) funds, whether or not a State has a program of State aid that meets the requirements of section 8009 of the Act and subpart K of the regulations in this part. (1) A reduction in the per pupil amount of State aid for children with disabilities, including children counted under section 8003(d), from that received in a previous year raises a presumption that supplanting has occurred. (2) The LEA may rebut this presumption by demonstrating that the reduction was unrelated to the receipt of section 8003(d) funds. (b) In any State in which there is only one LEA, all funds for programs for children with disabilities other than funds from Federal sources are considered by the Secretary to be local funds. (Authority: 20 U.S.C. 7703(d)) Local educational agencies receiving funds under section 8003(d) are subject to the requirements of the Individuals with Disabilities Education Act, and related regulations (20 U.S.C. 1401 et seq. and 34 CFR part 300). (Authority: 20 U.S.C. 1401 et seq., 6314, and 7703(d))
Title 34: Education
PART 222—IMPACT AID PROGRAMS
Subpart D—Payments Under Section 8003(d) of the Act for Local Educational Agencies That Serve Children With Disabilities
§ 222.50 What definitions apply to this subpart?
§ 222.51 Which children may a local educational agency count for payment under section 8003(d) of the Act?
§ 222.52 What requirements must a local educational agency meet to receive a payment under section 8003(d)?
§ 222.53 What restrictions and requirements apply to the use of funds provided under section 8003(d)?
§ 222.54 What supplement-not-supplant requirement applies to this subpart?
§ 222.55 What other statutes and regulations are applicable to this subpart?
§§ 222.56-222.59 [Reserved]
