POLICY LETTER: January 20, 2004 to Bureau of Indian Affairs Special Education Director Keith Neves

Dated January 20, 2004Mr. Keith NevesSpecial Education DirectorBureau of Indian Affairs Office of Indian Education ProgramsCenter for School Improvement500 Gold Avenue, SW, Room 7202Albuquerque, New Mexico 87103-1088Dear Mr. Neves:I am writing regarding a conference call on September 24, 2003 that Ms. Gloria Yepa, who was, at that time, Special Education Director for the Bureau of Indian Affairs (BIA), and Ms. Sharon Wells, Chief of the BIA Center of School Improvement, participated in with members of my staff concerning BIA's request to allocate $2.7 million of Federal fiscal year (FFY) 2001 funds under Part B of the Individuals with Disabilities Education Act (IDEA) that were going to expire on September 30, 2003 to the Navajo Nation for its preschool program. We denied that request for the reasons explained below.The Secretary reserves 1.226% of funds allocated under section 611 of IDEA to provide assistance to the Secretary of the Interior. 20 U.S.C.1411 (c). In FFY 2002 and 2003, the amount allocated to the Secretary of the Interior was set in appropriations language at the prior year's funding level plus inflation. Eighty percent of these funds are allocated to the Secretary of Interior to provide special education and related services to children with disabilities on reservations aged 5 through 21 enrolled in elementary and secondary schools for Indian children operated or funded by the Secretary of Interior. 20 U.S.C.1411(i)(1)(A). Twenty percent of these funds are allocated to the Secretary of Interior to be distributed based on a statutory formula to tribes and tribal organization to provide for the coordination of assistance for special education and related services for children with disabilities aged 3 through 5 on reservations served by elementary and secondary schools for Indian children operated or funded by the Department of Interior. 20 U.S.C. 1411(i)(3)(A). Every fiscal year, the grant award letter to the BIA specifies these amounts. Initially, Ms. Wells requested that the $2.7 million of FFY 2001 funds that were about to lapse be transferred to the Navajo Nation's infant and toddler program. The funds allocated to the BIA under section 611 (c) of IDEA must be used in accordance with section 611(i) of IDEA, which does not authorize use of funds for infants and toddlers with disabilities. When we explained this, Ms. Wells clarified that BIA was requesting that the funds be transferred to the Navajo Nation's preschool program. However, BIA was unable to assure OSEP that this transfer of funds would not result in more than 20% of the BIA's FFY 2001 funds being /s/ Patricia J. Guard forStephanie Smith Lee DirectorOffice of Special Education Programs Page PAGE 2 Mr. Keith Neves