POLICY LETTER: November 8, 2002 to U.S. Congressman Ken Lucas

Dated November 8, 2002Honorable Ken LucasMember, House of Representatives277 Buttermilk PikeFort Mitchell, KY 41017Dear Representative Lucas:I am writing in further response to your recent letter to the Department on behalf of your constituent, X asked for help in explaining assistance under Title V of the Elementary and Secondary Education Act (ESEA), as amended by the No Child Left Behind Act, especially with regard to getting a nurse in every school in Fort Thomas, KY funded by Title V of ESEA. I am sorry for the delay in responding.Title V, Part A of ESEA provides assistance to State educational agencies and local educational agencies (LEAs) for innovative educational programs. Funds are distributed under a statutory formula and Section 5131(a) of Title V describes twenty-seven innovative assistance programs for which LEAs may use program funds. One of the programs described in that section is a program to hire and support school nurses, so an LEA that wishes to use funds to hire school nurses with Title V funds may do so. As required by the statute, any use of Title V Part A funds for innovative programs, including hiring school nurses, must be (1) tied to promoting challenging academic achievement standards; (2) used to improve student academic achievement; and (3) part of an overall education reform strategy.Under section 5133(c)(1) of the statute, LEAs have substantial discretion in determining how they use their Title V Part A funds among allowable program areas and cannot be required to use funds for any particular program. Thus, if an LEA decides to use funds to hire school nurses, it might not necessarily decide to hire nurses for every school in the LEA. This decision is generally within the LEA's discretion, based on the needs of the school district and other factors. Based on the Title V statute, the Department could not require an LEA to spend funds on nurses, nor could it require the LEA to have nurses in each school.There is more information available on the implementation of the Title V Part A program in the program's guidelines, which were issued in August and are available on the Department of Education's Internet site at:HYPERLINK "http://www.ed.gov/programs/innovative/titlevguidance2002.doc"www.ed.gov/offices/OESE/SIP/titlevguidance2002.docUnder other statutes setting forth the general authority of the Department, such as the Department of Education Organization Act and the General Education Provisions Act, it is clear that this Department, generally does not have the authority to determine personnel and administrative matters in the schools. These limits on authority would include whether to require nurses in each school, unless these matters are directly related to requirements in Federal education statutes.With regard to other Federal statutes, it is possible under specific circumstances that a child with asthma (as mentioned in X E-mail message) may be eligible under the Individuals with Disabilities EducationAlthough, a child might not otherwise be eligible for special education and related services pursuant to IDEA, the child may require accommodations under Section 504. OCR may be able to provide your constituent with information about specific accommodations that can be made for children with asthma. You or your constituent may address an inquiry to the OCR Regional Office at the following address and telephone number:Philadelphia OfficeU.S. Department of EducationWanamaker Building, Suite 515100 Penn Square EastPhiladelphia, PA 19107Telephone: 215-656-8541For more information regarding IDEA, Section 504, and Title V Part A with regard to this specific situation, X may also wish to contact appropriate State and local officials to share her concerns and to get their views on this matter.I appreciate your interest in this matter and in education, and X concerns. I hope you find the information in this letter helpful. If you have further questions on this matter, please let me know. Sincerely,/s/Philip RosenfeltAssistant General Counselfor Elementary, Secondary, Adult and Vocational EducationPage PAGE 2