POLICY LETTER: June 14, 2010 to National Association of State Directors of Special Education Executive Director Bill East

June 14, 2010Bill East, Ed.D.Executive DirectorNational Association of State Directors of Special Education, Inc.1800 Diagonal Road, Suite 320Alexandria, Virginia 22314Dear Bill East:This is in response to your letter to Mr. Charles Rose, General Counsel for the U.S. Department of Education (Department). The letter was forwarded to me for response and I am pleased to have the opportunity to address your concern.In your letter, you challenge what you believe to be a change in the Department's policy regarding the interpretation of section 612(a)(18)(A) of the 2004 Amendments to the Individuals with Disabilities Education Act (IDEA) and its implementing regulations at 34 CFR 300.163(a), which state: "A State must not reduce the amount of State financial support for special education and related services forpreceding fiscal year." This language is identical to the language in section 612(a)(18)(A) of the IDEA.Thus, the statute has never included a provision for State educational agency maintenance of support, but has, since the 1997 Amendments to the IDEA, included the requirement for State financial support. In the 1997 Amendments, State is defined at section 601(27) as follows: "The term 'State' means each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas." The definition of State was not altered in the 2004 Amendments to the IDEA.2The reference to "State" financial support in section 612(a)(18)(A) is consistent with the statutory scheme of the IDEA, which recognizes in section 612(a)(11)(B) that the responsibility of the SEA for the general supervisSincerely,/s/Alexa Posny, Ph.D.EnclosureContact Persons Name: Ruth RyderTelephone: 202-245-7513Name: Deborah MorrowTelephone: 202-245-7456December 2, 2009SEP 10-5MEMORANDUMTO:Chief State School OfficersState Directors of Special EducationFROM:Alexa Posny /s/Acting DirectorOffice of Special Education ProgramsSUBJECT:Maintenance of State Financial Support under theIndividuals with Disabilities Education ActSince the Office of Special Education Programs (OSEP) began focusing on the fiscal requirements of the Individuals with Disabilities Education Act (IDEA) in 2007, the heightened scrutiny has given rise to requests for clarification of several of those provisions. In addition, the passage of the American Recovery and Reinvestment Act of 2009 on February 17, 2009, requires States and local educational agencies (LEAs) to examine the fiscal requirements in a new light and to be in a position to account for each of those requiremenPage 2 - Maintenance of State Financial SupportUnder section 602(31) of the IDEA and 34 CFR 300.40 of the Part B implementing regulations, "State" is defined as each of the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, and each of the outlying areas. Under section 602(32) of the IDEA and 34 CFR 300.41 of the regulations, "State educational agency" is defined as the State board of education or other agency or officer primarily responsible for the State supervision of public elementary schools and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law.The reference to "State financial support" in 34 CFR 300.163 is not limited to only the financial support provided to or through the SEA, but encompasses the finan