1301. Statutory Authority.
Federal Statutory Authority:
Individuals with Disabilities Education Act (IDEA) (
20 U.S.C. §§
1400 et seq.)
State Statutory Authority in accordance with 3
V.S.A. Chapter 25:
16 V.S.A. §
164.(7)
16 V.S.A. Chapter 101
1302. Statement of Purpose.
In 2018, the Vermont General Assembly enacted Act 173 with
the intent to enhance the effectiveness, availability, and equity of services
provided to all students who require additional support in Vermont's school
districts, and directed a shift to a census-based model of special education
funding. The purposes of Act 173 are to:
(1) enhance delivery of services,
(2) shift the State from a reimbursement
model to a census-based model, which will provide more flexibility in how the
funding can be used,
(3) align with
the State's policy priorities of serving students who require additional
support across the general and special education service-delivery
systems,
(4) facilitate exercise of
entitlement to a free appropriate public education in the least restrictive
environment appropriate for students eligible for an individual educational
program under the IDEA and
(5)
simplify administration.
These rules are designed to:
(a) guide implementation of a census-based
model of funding for students who require additional support;
(b) guide the provision of funds to
supervisory unions and supervisory districts in a manner designed to enhance
the effectiveness, availability, and equity of services provided to all
students who require additional support, while ensuring the entitlement of
eligible students with disabilities to a free appropriate public education in
accordance with State and federal law; and
(c) be implemented in a manner consistent
with State and federal statutes, regulations, and guidelines.
1303.
Definitions.
Any terms used in these rules not defined below shall be
consistent with the definitions found in State Board of Education (SBE) Rule
2361.1. For purposes of these rules, the following definitions apply:
Essential Early Education (EEE): as
defined in
16 V.S.A. §
2942 EEE may also be referred to as Early
Childhood Special Education (ECSE).
Extraordinary Expenditures: means an
LEA's allowable special education expenditures that for any one student in a
fiscal year exceed the extraordinary cost threshold as calculated under
16 V.S.A. §
2962(a)(2).
Individualized Education Program
(IEP): means a written statement for a student with a disability
that is developed, reviewed, and revised in accordance with SBE Rule
2363.
Local Education Agency (LEA): as
that term is defined in
20
U.S.C. §
7801(30),
means the supervisory union or supervisory district.
Secretary: means the Secretary of
the Vermont Agency of Education.
Special Education Services: means
specially designed instruction, at no cost to the parent, to meet the unique
needs of an eligible student with a disability, including instruction conducted
in the classroom, in the home, in hospitals and institutions and in other
settings and instruction in physical education. Specially designed instruction
means adapting, as appropriate to the needs of an eligible student, the
content, methodology, or delivery of instruction to address the unique needs of
the student that result from the student's disability and to ensure access of
the student to the general curriculum, so that the student can meet the
educational standards within the State that apply to all children. This
definition is intended to be consistent with the term "Special Education
Services" as used in SBE Rule 2360.2.12 and
34 C.F.R.
300.39.
State-placed Student: as defined in
16 V.S.A. §
11(a)(28).
Student: means a person age three
through age twenty-one, inclusive.
For purposes of Rule Series 1300 only, "child
with a disability," "student with a disability," and "eligible student" shall
refer to: a student who has been found eligible for special
education and related services consistent with the process found in SBE Rules
2361 and 2362.
Student who requires additional
support: as defined in
16 V.S.A. §
2942(8).
1304. Use of Idea Part B Funds.
Per 2 C.F.R. 200, subpart E, uses of federal grant funds must
be reasonable, allocable, and necessary. An LEA may use the funds received in
the IDEA-B subgrant as indicated below.
1304.1
General
Rule (
34 C.F.R. §
300.202)
(a) Amounts provided to an LEA under IDEA
Part B must be used only to pay the excess cost, as defined in
34
C.F.R. §
300.16, of providing special
education and related services to children with disabilities, consistent with
34 C.F.R. §
300.202; and
(b) Must be used to supplement State, local,
and other federal funds and not supplant those funds.
(c) In order to assist LEAs in determining
whether funds provided under IDEA Part B may be used for a specific activity,
the Agency of Education shall maintain a Technical Manual for Use and
Accounting of IDEA Part B Entitlement Grants. The Technical Manual shall list
the common services that are deemed to be consistent with the excess cost rule
in 34 C.F.R.
300.16.
The Technical Manual shall be based on and updated according to guidance from
the United State Department of Education's Office of Special Education Programs
(OSEP).
(1) Before publishing the technical
manual required by subsection (c), the Agency shall post a draft manual on the
Agency website for 30 days and allow public comment. Before the Technical
Manual becomes effective, the Agency shall publish all public comments received
and the Agency's written response(s).
1304.2
Coordinated Early
Intervening Services (CEIS) (
34 C.F.R. §
300.226)
(a) An LEA may elect to use up to 15 percent
of its total IDEA Part B allocation in any fiscal year to implement Coordinated
Early Intervening Services to provide early intervening services for those
students not yet identified as needing special education or related services,
but who may need additional academic and behavioral supports to meet
grade-level indicators. More specifically, these services should be targeted to
PreKindergarten-12 (with a focus on PreKindergarten-3) students.
(b) An LEA may be required to use 15 percent
of its total IDEA Part B allocation in any fiscal year to implement CEIS if the
LEA is found to have significant disproportionality based on ethnicity or race
with respect to identification, placement, and disciplinary removals.
1304.3
Schoolwide Programs Under Title I of the Elementary and
Secondary Education Act (ESEA) (
34 C.F.R. §
300.206)
An LEA may use funds received under IDEA Part B in any fiscal
year to carry out a schoolwide program under section 1114 of the ESEA, in
accordance with
34 C.F.R. §
300.206.
1305. Use of State Funds.
1305.1 Census Block Grant
(a) If an LEA is able to meet its ongoing
service requirements under IDEA Part B and Vermont law, census-block funds may
be invested in system structures or programs for students with and without
disabilities requiring additional supports.
(b) Notwithstanding subsection (a), an LEA is
responsible for complying with the maintenance of effort provisions in Rule
1306.
1305.2 State-placed
Reimbursement Pursuant to
16 V.S.A. §
2950(a), the Secretary may
approve any costs incurred in educating a State-placed student who is not
eligible for special education that are incurred due to the special needs of
the student.
1305.3 Essential Early
Education (EEE/ECSE)
(a) Essential Early
Education grant funds shall be used to provide a free appropriate public
education to all students three through five years of age within the LEA who
are eligible for special education services.
(b) Once an LEA has fulfilled its obligations
under subsection (a), EEE/ECSE grant funds may be used to provide:
(1) Child Find activities as specified to
determine eligibility of a child who is younger than three years of age;
or
(2) Services to students who are
three through five years of age who have been identified as being at risk of
school failure.
(c) An
LEA, at its discretion, may use EEE grant funds to support resident students
enrolled in a public or private, prequalified, PreKindergarten education
program located outside the LEA's jurisdiction.
1306. Maintenance of Effort (MOE).
34 C.F.R. §
300.203)
1306.1 Eligibility Standard
(a) For purposes of establishing the LEA's
eligibility for a federal award under IDEA Part B for a particular fiscal year,
the Secretary must determine that the LEA has budgeted, for the education of
students with disabilities, at least the same amount, from at least one of the
following sources, as the LEA spent for that purpose from the same source for
the most recent fiscal year for which information is available:
(1) Local funds only;
(2) The combination of State and local
funds;
(3) Local funds only on a
per capita basis; or
(4) The
combination of State and local funds on a per capita basis.
(b) When determining the amount of
funds that the LEA must budget to meet the requirement in subsection (a), the
LEA may take into consideration, to the extent the information is available,
the exceptions and adjustment provided in
34 C.F.R. §§
300.204 and
300.205
that the LEA:
(1) Took in the intervening
year or years between the most recent fiscal year for which information is
available and the fiscal year for which the LEA is budgeting; and
(2) Reasonably expects to take in the fiscal
year for which the LEA is budgeting.
1306.2 Compliance Standard
(a) Except as provided in
34 C.F.R. §§
300.204 and
300.205,
funds provided to an LEA under IDEA Part B must not be used to reduce the level
of expenditures for the education of students with disabilities made by the LEA
from local funds below the level of those expenditures for the preceding fiscal
year. An LEA meets this standard if it does not reduce the level of
expenditures for the education of students with disabilities made by the LEA
from at least one (1) of the following sources below the level of those
expenditures from the same source for the preceding fiscal year, except as
provided in
34 C.F.R. §§
300.204 and
300.205:
(1) Local funds only;
(2) The combination of State and local
funds;
(3) Local funds only on a
per capita basis; or
(4) The
combination of State and local funds on a per capita basis.
(b) Expenditures made from funds
provided by the federal government for which the Secretary is required to
account to the federal government or for which the LEA is required to account
to the federal government directly or through the Secretary may not be
considered in determining whether an LEA meets the standard in subsection
(a).
1306.3 Subsequent
Years Rule
If an LEA fails to meet the requirements of MOE, the level of
expenditures required of the LEA for the fiscal year subsequent to the year of
the failure is the amount that would have been required in the absence of that
failure, not the LEA's reduced level of expenditures.
1306.4 Consequence of Failure to Maintain
Effort
If an LEA fails to maintain its level of expenditures for the
education of students with disabilities in accordance with Rule 1306.2, the
Agency of Education is liable in a recovery action under section 452 of the
General Education Provisions Act (
20 U.S.C. 1234a
) to return to the Department of Education, using non-federal funds, an amount
equal to the amount by which the LEA failed to maintain its level of
expenditures in that fiscal year, or the amount of the LEA's Part B subgrant in
that fiscal year, whichever is lower.
1306.5 Exceptions to Maintenance of Effort
(
34 C.F.R. §
300.204)
Allowance may be made for the difference between the level of
effort in the current fiscal year and the amount required to maintain effort
for the following reasons:
(a) The
voluntary departure, by retirement or otherwise, or departure by just cause, of
special education or related services personnel;
(b) A decrease in the enrollment of students
with disabilities;
(c) The
termination of the obligation of the LEA, consistent with this part, to provide
a program of special education to a particular student with a disability that
is an exceptionally costly program, as determined by the Secretary, because the
student has left the jurisdiction of the LEA, has reached the age at which the
obligation of the LEA to provide FAPE to the student has terminated, or no
longer needs the program of special education;
(d) The termination of costly expenditures
for long-term purchases, such as the acquisition of equipment or the
construction of school facilities; or
(e) The assumption of cost by the high cost
fund operated by the Secretary under
34 C.F.R.
300.704(c).
1307.
Documenting Maintenance of Effort.
When calculating the eligibility test of maintenance of
effort, an LEA may include budgeted expenses that are attributable to the
education of children with disabilities. When calculating the compliance test
of maintenance of effort, an LEA may include actual expenses that are
attributable to the education of children with disabilities.
34 C.F.R. §
300.203.
For purposes of calculating maintenance of effort, a budgeted
or actual expense is attributable to the education of children with
disabilities if it is the result of:
(a) Providing special education or related
services and/or supplementary aids and services that are articulated in a
student's IEP; or
(b)
Instructional, behavioral, and other academic/non-academic supports that are
provided to students with and without disabilities, so long as the services
provided are articulated in an eligible student's IEP; or
(c) An IEP team decision to place an eligible
special education student in an approved independent school that limits
enrollment to students who are on an individualized education program, or a
plan under Section 504 of the Rehabilitation Act of 1973,
29 U.S.C.
§
794, and who are enrolled pursuant to
a written agreement between the local education agency and the school. In such
a case, tuition associated with that placement shall be considered eligible and
may count toward maintenance of effort.
(d) Non-student-specific expenditures
reasonably related to the provision of special education services.
(1) Non-student-specific expenditures include
but are not limited to child find, special education administration costs, and
costs of software used to maintain special education files. The Agency of
Education shall maintain a Technical Manual for Documenting Maintenance of
Effort under
34 C.F.R. §
300.203. The Technical Manual shall list the
common services that are deemed to be reasonably related to the provision of
special education services under (c), above. An expenditure not included in the
Technical Manual may be allowed on a case-by-case basis if written prior
approval is granted by the Agency.
(2) Before publishing the technical manual
required by subsection (d)(1), the Agency shall post a draft manual on the
Agency website for 30 days and allow public comment. Before the Technical
Manual becomes effective, the Agency shall publish all public comment received
and the Agency's written response(s).
1308. Administration of Grants and
Reibursements.
1308.1 Census Block
1308.1.1 Calculation
(a) The census grant shall be calculated in
accordance with 16 V.S.A. § 2961
(b) On or before December 15 [ th, ] the
Secretary shall publish an estimate of the census block grant, payable to each
LEA for the ensuing fiscal year.
1308.1.2 Payment
On or before August 15, December 15, and April 15 of each
school year, each LEA shall receive one-third of the census grant under section
2961 for that fiscal year.
1308.2 Extraordinary Special Education
Expenditure Reimbursement
1308.2.1 Submission
Consistent with
16 V.S.A. §
2969(a)(2), each LEA shall
submit a financial report to the Secretary containing details of all
extraordinary expenditures during the reporting period. Reports shall be
submitted on or before November 15, January 15, April 15, and August 1. LEAs
shall use a reporting format specified by the Secretary. Extraordinary
expenditure reporting shall include, but is not limited to: student's name;
student's date of birth; student's town of residence; student's responsible
LEA; disability category[ies]; placement; residential placement; special
education tuition; and non-tuition costs broken out by the State's Uniform
Chart of Accounts.
1308.2.2 Review
The Secretary will review the extraordinary expenditure
report in accordance Rules 1304 and 1305 and Rule 2200 (Independent
Schools).
1308.2.3 Payment
(a) On or before December 15, February 15,
May 15, and September 15 of each school year, each LEA shall receive the amount
of extraordinary reimbursement incurred by it under
16 V.S.A. §
2962 that is unreimbursed and determined by
the Secretary to be payable to the LEA.
(b) The Secretary may determine certain
expenditures to be non-reimbursable if they fail to meet the requirements of
Rule 1308.2.2. Total payments made for extraordinary expenditures will be the
total amount submitted in the extraordinary expenditure report less any
expenditures determined to be non-reimbursable.
1308.2.4 Special Education Administration
Costs
Special Education administration costs shall not be included
as a cost of an individual student when reporting and calculating extraordinary
special education expenditures.
1308.3 Essential Early Education
1308.3.1 Calculation
Essential Early Education (EEE) grants shall be calculated
according to the estimated number of students from three through five years of
age in the LEA. The estimated number of students who are three through five
years of age shall be based on the last verified average daily membership of
all students enrolled within the LEA in grades one through three. The Secretary
shall announce the estimated number of students three through five years of age
in each LEA and the proposed grant allocation amounts by December
15th.
1308.3.2 Payment
(a) All LEAs shall receive an EEE grant each
year. Grant payments will be made on August 15 and December 15 of each year and
one-half of the annual amount will be forwarded on each date.
(b) LEAs shall make reasonable efforts to
coordinate services with local public and private agencies that provide
services to students of three through five years of age.
1308.4 State-placed
Special Education Expenditure Reimbursement
The Secretary shall reimburse an LEA 100 percent of allowable
special education costs for a state-placed student as defined in
16 V.S.A. §
11(a)(28).
1308.4.1 Submission
Consistent with
16 V.S.A. §
2969(a)(2), an LEA shall
submit a financial report to the Secretary containing details of all
state-placed student expenditures during the reporting period. Reports shall be
submitted on or before November 15, January 15, April 15, and August 1. LEAs
shall use a reporting format specified by the Secretary.
1308.4.2 Review
The Secretary will review the state-placed student
expenditure report in accordance with Rules 1304 and 1305.
1308.4.3 Payment
(a) On or before December 15, February 15,
May 15, and September 15 of each school year, each LEA shall receive the amount
of state-placed reimbursement incurred by the LEA under
16 V.S.A. §
2950(a) that is unreimbursed
and determined by the Secretary to be payable to the LEA.
(b) The Secretary may determine certain
expenditures to be non-reimbursable if they fail to meet the requirements of
Rules 1304 and 1305. Total payments made for state-placed expenditures will be
the total amount submitted in the state-placed expenditure report less any
expenditures determined to be non-reimbursable.
1308.4.4 Payments for State-Placed Students
in Residential Placements and Out-of-State Public Schools
Payments for state placed students in residential placements
and out-of-state public schools shall be in accordance with
16 V.S.A. §
2950
1309. Fiscal Monitoring and Reporting.
(a) The Secretary shall periodically monitor
all LEAs for compliance with Vermont statutes and rules, and federal
requirements under the Individuals with Disabilities Education Act (IDEA) and
Uniform Guidance. The monitoring process shall include, but not be limited to,
review of LEA special education budgets, expenditures, and supporting
documentation.
(b) The monitoring
procedures may include, but are not limited to:
(1) Risk analysis;
(2) Sampling and review of
documentation;
(3) Corrective
action plan development and review.
(c) After the monitoring process is
completed, a report shall be written and sent to the LEA. If the report
indicates noncompliance, the LEA shall develop a corrective action plan in
response to the findings of noncompliance and submit the plan to the Secretary
for approval. The Secretary shall review the corrective action plan and notify
the LEA if it is acceptable.
(d) A
corrective action plan shall include, but not be limited to, the following:
(1) Objectives and strategies for correcting
each noncompliance item cited, including resources needed; and
(2) The dates by which noncompliance will be
corrected.
(e) When a
corrective action plan is not submitted, found unacceptable, or not
implemented, the Secretary shall notify the LEA of the actions the Secretary
intends to take. These actions may include, but are not limited to:
(1) Further monitoring;
(2) Mandatory technical assistance or
professional development;
(3)
Withholding or directing of funding.
(f) An LEA shall provide documentation
necessary for the Secretary to fulfill its reporting obligations pursuant to
federal regulations. Documentation shall be provided in accordance with the
timeline and format specified by the Secretary.
(g) If documentation is not submitted
consistent with subsection (f), the Secretary shall notify the LEA of the
actions the Secretary intends to take.
1310. Collaborative Programs.
1310.1 Collaborative Program Definition;
Tuition
A "collaborative program" is a program created pursuant to an
agreement between two or more LEAs in accordance with
16 V.S.A.
§
267, for the purpose of cooperatively
providing special education services. A collaborative program may offer one or
more component programs (e.g. multi-disabilities, emotionally disturbed,
diversified occupations). A collaborative program may charge a tuition pursuant
to
16
V.S.A. §
826(b).
1310.2 Collaborative Program Accounting
The accounting for each collaborative program shall be in
accordance with the technical guidance issued by the Agency and:
(a) An enterprise fund as defined in
technical guidance shall be established to account for the funds for each
collaborative program;
(b) Notice
of tuition shall be provided by the collaborative program to the appropriate
school board(s) as set forth in
16
V.S.A. §
826(a);
(c) Such tuition notice shall include a
description of services to be provided, and the amount of the tuition for each
component program;
(d) Tuition
shall be proportionately calculated for students who are part-time;
and
(e) Final tuition charged shall
be calculated based on the actual cost of the program.
1310.3 Non-collaborative Tuition
(a) An LEA may charge tuition under
16
V.S.A. §
826(b) for
providing special education services. Both special education tuition and excess
costs must reflect allowable special education expenditures. In the case of a
supervisory district, special education tuition shall not be charged for a
student whose district of residence is the school district. In the case of a
supervisory union, special education tuition shall not be charged for a student
from within the supervisory union unless otherwise agreed pursuant to
16 V.S.A. §
301
(b) All the provisions of Rule 1310.2 apply
to tuition under subsection (a) above, except that:
(1) It is permissible but not required that
an enterprise fund be established; and
(2) The notice of tuition establishes the
maximum tuition which can be charged.
1310.4 Excess Costs Procedure
Excess costs that may be charged under
16
V.S.A. §
826(c) and
2962(e) are limited to allowable special education costs for services not
covered by a general education tuition or a special education tuition.
Allowable special education costs for this purpose are defined in Rules 1304
and 1305. The following procedures shall apply to excess costs:
(a) Excess cost shall be calculated based on
the actual costs attributable to the student as required in their
IEP.
(b) District of residence or
agency responsible shall be given prior notice by the billing supervisory
union, supervisory district, or approved independent school as per
16 V.S.A. §
2962(e), that an excess cost
will be charged;
(c) Notice shall
indicate the student's name, type, frequency of service to be provided, fee for
services to be provided, and proposed billing schedule; and
(d) No excess costs will be allowable in the
absence of a fully executed contract. Such contract must meet minimum criteria
of Uniform Guidance (2 C.F.R. Part
200) and State procurement guidelines or be
in a form approved for this purpose by the Secretary.
1310.5 Allowable Costs Reporting
For financial and statistical reporting to the Secretary, the
cost reported by an LEA for all allowable special education services shall be
the actual cost of services provided minus the revenue received or due for
excess costs.
1310.6
Allocation of Attorney's Fees
All awards, costs and fees associated with a legal proceeding
in which a collaborative program is a party shall be borne by the LEA of the
student's residence unless otherwise agreed upon by the collaborative's
members. However, the foregoing shall not be construed to mean that a
collaborative or LEA shall be responsible for the legal fees of a parent unless
ordered by a court or agreed to in mediation.
1311. Local Education Agency Plan.
(
34 C.F.R §
300.200)
Each LEA that receives IDEA B federal funds shall submit a
local education agency plan providing assurances as required by the Vermont
Agency of Education.
1312.
Act 173 Evaluation.
(a) The Secretary shall
integrate existing monitoring and reporting practices to inform an evaluation
process designed to assess the following goals of Act 173 as they relate to
services LEAs provide to all students who require additional support:
(1) effectiveness of services;
(2) availability of services;
(3) equity of services, and
(4) supervisory union compliance with the
IDEA and State law.
(b)
This evaluation process shall be available for implementation concurrent with
full implementation of the census-based funding model pursuant to
16
V.S.A. §
2961
(c) The results of any evaluation conducted
pursuant to this Rule shall be provided to the Legislature, the LEAs, and the
general public.
Effective Date:
These rules will take effect on July 1,
2022.
