POLICY LETTER: April 8, 2008 to Washington, DC Attorney Christine Plagata-Neubauer

stine Plagata-NeubauerBrustein and Manasevit, Attorneys at Law 3105 South Street, NWWashington, DC 20007Dear Ms. Plagata-NeubauerThis letter is in response to your October 30, 2007 letter to the Office of Special Education Programs (OSEP) in which you request clarification on several fiscal questions relating to Part B of the Individuals with Disabilities Education Act (IDEA). Your questions, with OSEP's responses, are listed below.Excerpt from your letter: Question Topic No. 1 - Excess Cost RequirementRegulation 300.202(b)(2)(i) states that an LEA [local educational agency] "meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used" (emphasis added). Regulation 300.16 refers to Appendix A "for an example of how excess costs must be calculated" (emphasis added). As the first step in the calculation, Appendix A, paragraph "a." states that "the LEA must determine the total amount of its expenditures for elementary school students from all sources - local, State, and Federal including Part B - in the precedingQuestion lb: If the excess cost calculation refers to the total amount of expenditures for the education of its students (elementary or secondary, respectively), in as much as States have discretion in deciding what constitutes education based on their State law, is there any guidance as to how States are to exercise that discretion for the purpose of the excess cost calculation? For example, can a State include instructional-related expenditures and transportation expenditures, but exclude expenditures related to school food programs in the excess cost calculation?Our Response: The reference in 34 CFR 300.16 and Appendix A is to total expenditures of the LEA for elementary school students and total expenditures for secondary school students, not total expenditures for the education of elementary school students and total expenditures for the education of secondary school students. The only possible deductions are those specified in 34 CFR 300.16 and Appendix A.Excerpt from your letter:Questions on determining excess cost compliance:Appendix A states that "Section 602(8) of the Act and 300.16 require the LEA to compute the minimum average amount separExcerpt from your letter:Question Topic No. 2 - LEA Maintenance of Effort RequirementUnder the State-level requirement, the State must not reduce the amount of State financial support "for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year." See IDEA section 645(a)(18); 34 CFR 300.163(a). The focus is on special education and related services, or the excess costs of educating children with disabilities that arise from those children's disability-related needs.The local-level maintenance of effort requirement, however, focuses on "the education of children with disabilities." See IDEA section 613(a)(2)(A)(iii); 34 CFR 300.203(a) and (b). The wording of this phrase could encompass not only special education and relatedPage 4 - Ms. Christine Plagata-Neubauerservices, or excess costs of educating children with disabilities, but also the basic cost of providing children with disabilities a public education.Question 2: Is there a difference in the type of expenditures that must be considered Page 5 - Ms. Christine Plagata-NeubauerExcerpt from your letter:Question 3b: If those activities are allowable pursuant to 300.202(a), then can IDEA Part B funds be used to pay for a reasonable amount of program costs specifically tied to an LEA meeting Part B requirements (for example, data collection and reporting to the SEA for State Performance Plan submissions), provided such use does not violate other requirements of IDEA Part B, including excess cost, maintenance of effort, supplement, nonsupplant?Our Response: Yes.Excerpt from your letter:Question Topic No. 4 - Payment of RTI-related CostsThe new regulations permit LEAs to use a process based on the child's response to scientific, research-based intervention (RTI) as a means for determining whether a child has a specific learning disability. This RTI process could be one of multiple methods used in evaluating a child who is suspected of having a disability.Question 4: Could an LEA use Part B funds that are not set-aside for early intervening services to pay for some or all of the cost of implementing RTI as part of a child find process?Our Response: We will respond to your question regarding RTIWilliam W. KnudsenActing DirectorOffice of Special Education Programsstine Plagata-NeubauerBrustein and Manasevit, Attorneys at Law 3105 South Street, NWWashington, DC 20007Dear Ms. Plagata-NeubauerThis letter is in response to your October 30, 2007 letter to the Office of Special Education Programs (OSEP) in which you request clarification on several fiscal questions relating to Part B of the Individuals with Disabilities Education Act (IDEA). Your questions, with OSEP's responses, are listed below.Excerpt from your letter: Question Topic No. 1 - Excess Cost RequirementRegulation 300.202(b)(2)(i) states that an LEA [local educational agency] "meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used" (emphasis added). Regulation 300.16 refers to Appendix A "for an example of how excess costs must be calculated" (emphasis added). As the first step in the calculation, Appendix A, paragraph "a." states that "the LEA must determine the total amount of its expenditures for elementary school students from all sources - local, State, and Federal including Part B - in the precedingQuestion lb: If the excess cost calculation refers to the total amount of expenditures for the education of its students (elementary or secondary, respectively), in as much as States have discretion in deciding what constitutes education based on their State law, is there any guidance as to how States are to exercise that discretion for the purpose of the excess cost calculation? For example, can a State include instructional-related expenditures and transportation expenditures, but exclude expenditures related to school food programs in the excess cost calculation?Our Response: The reference in 34 CFR 300.16 and Appendix A is to total expenditures of the LEA for elementary school students and total expenditures for secondary school students, not total expenditures for the education of elementary school students and total expenditures for the education of secondary school students. The only possible deductions are those specified in 34 CFR 300.16 and Appendix A.Excerpt from your letter:Questions on determining excess cost compliance:Appendix A states that "Section 602(8) of the Act and 300.16 require the LEA to compute the minimum average amount separExcerpt from your letter:Question Topic No. 2 - LEA Maintenance of Effort RequirementUnder the State-level requirement, the State must not reduce the amount of State financial support "for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year." See IDEA section 645(a)(18); 34 CFR 300.163(a). The focus is on special education and related services, or the excess costs of educating children with disabilities that arise from those children's disability-related needs.The local-level maintenance of effort requirement, however, focuses on "the education of children with disabilities." See IDEA section 613(a)(2)(A)(iii); 34 CFR 300.203(a) and (b). The wording of this phrase could encompass not only special education and relatedPage 4 - Ms. Christine Plagata-Neubauerservices, or excess costs of educating children with disabilities, but also the basic cost of providing children with disabilities a public education.Question 2: Is there a difference in the type of expenditures that must be considered Page 5 - Ms. Christine Plagata-NeubauerExcerpt from your letter:Question 3b: If those activities are allowable pursuant to 300.202(a), then can IDEA Part B funds be used to pay for a reasonable amount of program costs specifically tied to an LEA meeting Part B requirements (for example, data collection and reporting to the SEA for State Performance Plan submissions), provided such use does not violate other requirements of IDEA Part B, including excess cost, maintenance of effort, supplement, nonsupplant?Our Response: Yes.Excerpt from your letter:Question Topic No. 4 - Payment of RTI-related CostsThe new regulations permit LEAs to use a process based on the child's response to scientific, research-based intervention (RTI) as a means for determining whether a child has a specific learning disability. This RTI process could be one of multiple methods used in evaluating a child who is suspected of having a disability.Question 4: Could an LEA use Part B funds that are not set-aside for early intervening services to pay for some or all of the cost of implementing RTI as part of a child find process?Our Response: We will respond to your question regarding RTIWilliam W. KnudsenActing DirectorOffice of Special Education Programsstine Plagata-NeubauerBrustein and Manasevit, Attorneys at Law 3105 South Street, NWWashington, DC 20007Dear Ms. Plagata-NeubauerThis letter is in response to your October 30, 2007 letter to the Office of Special Education Programs (OSEP) in which you request clarification on several fiscal questions relating to Part B of the Individuals with Disabilities Education Act (IDEA). Your questions, with OSEP's responses, are listed below.Excerpt from your letter: Question Topic No. 1 - Excess Cost RequirementRegulation 300.202(b)(2)(i) states that an LEA [local educational agency] "meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used" (emphasis added). Regulation 300.16 refers to Appendix A "for an example of how excess costs must be calculated" (emphasis added). As the first step in the calculation, Appendix A, paragraph "a." states that "the LEA must determine the total amount of its expenditures for elementary school students from all sources - local, State, and Federal including Part B - in the precedingQuestion lb: If the excess cost calculation refers to the total amount of expenditures for the education of its students (elementary or secondary, respectively), in as much as States have discretion in deciding what constitutes education based on their State law, is there any guidance as to how States are to exercise that discretion for the purpose of the excess cost calculation? For example, can a State include instructional-related expenditures and transportation expenditures, but exclude expenditures related to school food programs in the excess cost calculation?Our Response: The reference in 34 CFR 300.16 and Appendix A is to total expenditures of the LEA for elementary school students and total expenditures for secondary school students, not total expenditures for the education of elementary school students and total expenditures for the education of secondary school students. The only possible deductions are those specified in 34 CFR 300.16 and Appendix A.Excerpt from your letter:Questions on determining excess cost compliance:Appendix A states that "Section 602(8) of the Act and 300.16 require the LEA to compute the minimum average amount separExcerpt from your letter:Question Topic No. 2 - LEA Maintenance of Effort RequirementUnder the State-level requirement, the State must not reduce the amount of State financial support "for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year." See IDEA section 645(a)(18); 34 CFR 300.163(a). The focus is on special education and related services, or the excess costs of educating children with disabilities that arise from those children's disability-related needs.The local-level maintenance of effort requirement, however, focuses on "the education of children with disabilities." See IDEA section 613(a)(2)(A)(iii); 34 CFR 300.203(a) and (b). The wording of this phrase could encompass not only special education and relatedPage 4 - Ms. Christine Plagata-Neubauerservices, or excess costs of educating children with disabilities, but also the basic cost of providing children with disabilities a public education.Question 2: Is there a difference in the type of expenditures that must be considered Page 5 - Ms. Christine Plagata-NeubauerExcerpt from your letter:Question 3b: If those activities are allowable pursuant to 300.202(a), then can IDEA Part B funds be used to pay for a reasonable amount of program costs specifically tied to an LEA meeting Part B requirements (for example, data collection and reporting to the SEA for State Performance Plan submissions), provided such use does not violate other requirements of IDEA Part B, including excess cost, maintenance of effort, supplement, nonsupplant?Our Response: Yes.Excerpt from your letter:Question Topic No. 4 - Payment of RTI-related CostsThe new regulations permit LEAs to use a process based on the child's response to scientific, research-based intervention (RTI) as a means for determining whether a child has a specific learning disability. This RTI process could be one of multiple methods used in evaluating a child who is suspected of having a disability.Question 4: Could an LEA use Part B funds that are not set-aside for early intervening services to pay for some or all of the cost of implementing RTI as part of a child find process?Our Response: We will respond to your question regarding RTIWilliam W. KnudsenActing DirectorOffice of Special Education Programsstine Plagata-NeubauerBrustein and Manasevit, Attorneys at Law 3105 South Street, NWWashington, DC 20007Dear Ms. Plagata-NeubauerThis letter is in response to your October 30, 2007 letter to the Office of Special Education Programs (OSEP) in which you request clarification on several fiscal questions relating to Part B of the Individuals with Disabilities Education Act (IDEA). Your questions, with OSEP's responses, are listed below.Excerpt from your letter: Question Topic No. 1 - Excess Cost RequirementRegulation 300.202(b)(2)(i) states that an LEA [local educational agency] "meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used" (emphasis added). Regulation 300.16 refers to Appendix A "for an example of how excess costs must be calculated" (emphasis added). As the first step in the calculation, Appendix A, paragraph "a." states that "the LEA must determine the total amount of its expenditures for elementary school students from all sources - local, State, and Federal including Part B - in the precedingQuestion lb: If the excess cost calculation refers to the total amount of expenditures for the education of its students (elementary or secondary, respectively), in as much as States have discretion in deciding what constitutes education based on their State law, is there any guidance as to how States are to exercise that discretion for the purpose of the excess cost calculation? For example, can a State include instructional-related expenditures and transportation expenditures, but exclude expenditures related to school food programs in the excess cost calculation?Our Response: The reference in 34 CFR 300.16 and Appendix A is to total expenditures of the LEA for elementary school students and total expenditures for secondary school students, not total expenditures for the education of elementary school students and total expenditures for the education of secondary school students. The only possible deductions are those specified in 34 CFR 300.16 and Appendix A.Excerpt from your letter:Questions on determining excess cost compliance:Appendix A states that "Section 602(8) of the Act and 300.16 require the LEA to compute the minimum average amount separExcerpt from your letter:Question Topic No. 2 - LEA Maintenance of Effort RequirementUnder the State-level requirement, the State must not reduce the amount of State financial support "for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year." See IDEA section 645(a)(18); 34 CFR 300.163(a). The focus is on special education and related services, or the excess costs of educating children with disabilities that arise from those children's disability-related needs.The local-level maintenance of effort requirement, however, focuses on "the education of children with disabilities." See IDEA section 613(a)(2)(A)(iii); 34 CFR 300.203(a) and (b). The wording of this phrase could encompass not only special education and relatedPage 4 - Ms. Christine Plagata-Neubauerservices, or excess costs of educating children with disabilities, but also the basic cost of providing children with disabilities a public education.Question 2: Is there a difference in the type of expenditures that must be considered Page 5 - Ms. Christine Plagata-NeubauerExcerpt from your letter:Question 3b: If those activities are allowable pursuant to 300.202(a), then can IDEA Part B funds be used to pay for a reasonable amount of program costs specifically tied to an LEA meeting Part B requirements (for example, data collection and reporting to the SEA for State Performance Plan submissions), provided such use does not violate other requirements of IDEA Part B, including excess cost, maintenance of effort, supplement, nonsupplant?Our Response: Yes.Excerpt from your letter:Question Topic No. 4 - Payment of RTI-related CostsThe new regulations permit LEAs to use a process based on the child's response to scientific, research-based intervention (RTI) as a means for determining whether a child has a specific learning disability. This RTI process could be one of multiple methods used in evaluating a child who is suspected of having a disability.Question 4: Could an LEA use Part B funds that are not set-aside for early intervening services to pay for some or all of the cost of implementing RTI as part of a child find process?Our Response: We will respond to your question regarding RTIWilliam W. KnudsenActing DirectorOffice of Special Education Programsstine Plagata-NeubauerBrustein and Manasevit, Attorneys at Law 3105 South Street, NWWashington, DC 20007Dear Ms. Plagata-NeubauerThis letter is in response to your October 30, 2007 letter to the Office of Special Education Programs (OSEP) in which you request clarification on several fiscal questions relating to Part B of the Individuals with Disabilities Education Act (IDEA). Your questions, with OSEP's responses, are listed below.Excerpt from your letter: Question Topic No. 1 - Excess Cost RequirementRegulation 300.202(b)(2)(i) states that an LEA [local educational agency] "meets the excess cost requirement if it has spent at least a minimum average amount for the education of its children with disabilities before funds under Part B of the Act are used" (emphasis added). Regulation 300.16 refers to Appendix A "for an example of how excess costs must be calculated" (emphasis added). As the first step in the calculation, Appendix A, paragraph "a." states that "the LEA must determine the total amount of its expenditures for elementary school students from all sources - local, State, and Federal including Part B - in the precedingQuestion lb: If the excess cost calculation refers to the total amount of expenditures for the education of its students (elementary or secondary, respectively), in as much as States have discretion in deciding what constitutes education based on their State law, is there any guidance as to how States are to exercise that discretion for the purpose of the excess cost calculation? For example, can a State include instructional-related expenditures and transportation expenditures, but exclude expenditures related to school food programs in the excess cost calculation?Our Response: The reference in 34 CFR 300.16 and Appendix A is to total expenditures of the LEA for elementary school students and total expenditures for secondary school students, not total expenditures for the education of elementary school students and total expenditures for the education of secondary school students. The only possible deductions are those specified in 34 CFR 300.16 and Appendix A.Excerpt from your letter:Questions on determining excess cost compliance:Appendix A states that "Section 602(8) of the Act and 300.16 require the LEA to compute the minimum average amount separExcerpt from your letter:Question Topic No. 2 - LEA Maintenance of Effort RequirementUnder the State-level requirement, the State must not reduce the amount of State financial support "for special education and related services for children with disabilities, or otherwise made available because of the excess costs of educating those children, below the amount of that support for the preceding fiscal year." See IDEA section 645(a)(18); 34 CFR 300.163(a). The focus is on special education and related services, or the excess costs of educating children with disabilities that arise from those children's disability-related needs.The local-level maintenance of effort requirement, however, focuses on "the education of children with disabilities." See IDEA section 613(a)(2)(A)(iii); 34 CFR 300.203(a) and (b). The wording of this phrase could encompass not only special education and relatedPage 4 - Ms. Christine Plagata-Neubauerservices, or excess costs of educating children with disabilities, but also the basic cost of providing children with disabilities a public education.Question 2: Is there a difference in the type of expenditures that must be considered Page 5 - Ms. Christine Plagata-NeubauerExcerpt from your letter:Question 3b: If those activities are allowable pursuant to 300.202(a), then can IDEA Part B funds be used to pay for a reasonable amount of program costs specifically tied to an LEA meeting Part B requirements (for example, data collection and reporting to the SEA for State Performance Plan submissions), provided such use does not violate other requirements of IDEA Part B, including excess cost, maintenance of effort, supplement, nonsupplant?Our Response: Yes.Excerpt from your letter:Question Topic No. 4 - Payment of RTI-related CostsThe new regulations permit LEAs to use a process based on the child's response to scientific, research-based intervention (RTI) as a means for determining whether a child has a specific learning disability. This RTI process could be one of multiple methods used in evaluating a child who is suspected of having a disability.Question 4: Could an LEA use Part B funds that are not set-aside for early intervening services to pay for some or all of the cost of implementing RTI as part of a child find process?Our Response: We will respond to your question regarding RTIWilliam W. KnudsenActing DirectorOffice of Special Education Programs