92 Neb. Admin. Code, ch. 51, § 012

Current through September 17, 2024

Section 92-51-012 - School District or Approved Cooperative Application and Payment Process for IDEA Flow-Through Allocations

012.01 General Information

012.01A Except for purposes specified in 92 NAC 51-012.07A and 92 NAC 51-015.03C1b, IDEA allocations are to be used by school districts or approved cooperatives in accordance with state requirements necessary to provide a free appropriate public education to children with disabilities.

012.01B The Special Education Assurances and IDEA Consolidated Application of a school district and approved cooperative shall be submitted electronically via the NDE website to the Office of Special Education. Any amendments in the Assurances and Application shall be subject to the same review as the initial Assurances and Application.

012.01C Maintenance of Effort

012.01C1 A school district or approved cooperative may not use IDEA flow-through funds to reduce the level of expenditures below the preceding year's special education expenditures.

012.01C2 A school district or approved cooperative may use up to 50% of the amount received under IDEA that exceeds the amount received under IDEA the previous year to assist with meeting maintenance of effort.

012.01C3 Exceptions for a school district or approved cooperative not meeting IDEA maintenance of efforts requirements as per federal regulations are:

012.01C3a The school district or approved cooperative has reduced special education personnel costs because staff has been replaced with qualified staff earning lower salaries;

012.01C3b The school district or approved cooperative has a decrease in enrollment of children with disabilities;

012.01C3c The school district or approved cooperative is no longer responsible for a high cost needs child(ren) with a disability; and

012.01C3d The school district or approved cooperative has terminated a long-term special education purchase(s).

012.01D Notice and Opportunity for a Hearing Before Disapproval of an Application for IDEA Flow-through Allocations

012.01D1 The Nebraska Department of Education will provide an opportunity for a hearing prior to disapproving an application for special education funds for failure of the application to meet the requirements of the Individuals with Disabilities Education Act and its implementing regulations.

012.01D2 The school district or approved cooperative shall request a hearing in writing within 30 calendar days of receipt of the notice provided indicating that the Office of Special Education intends to recommend disapproval of the school district's or approved cooperative's application. Within 30 days after it receives a request, the Nebraska Department of Education shall hold a hearing on the record and shall review its decision.

012.01D3 Not later than 10 days after the hearing, the Nebraska Department of Education shall issue a written ruling, including the findings of fact and reasons for the ruling.

012.01D4 If the Nebraska Department of Education finds the proposed disapproval of the school district's or approved cooperative's application was contrary to the Individuals with Disabilities Education Act and its implementing regulations or the Nebraska Special Education Act and its implementing regulations, the Department shall approve the application.

012.01D5 If the Nebraska Department of Education disapproves the school district's or approved cooperative's application, the school district or approved cooperative may appeal to the U.S. Secretary of Education. The school district or approved cooperative shall file a notice for appeal within 20 days after the school district or approved cooperative has been notified by the Nebraska Department of Education of the results of the hearing. If supported by substantial evidence, the findings of the Nebraska Department of Education shall be final.

012.01D6 The Nebraska Department of Education will make available at reasonable times and places all records of the Department pertaining to any review or appeal the school district is conducting under 34 CFR 76.401 including records of other school districts or approved cooperatives.

012.02 IDEA Base Flow-through Allocation

012.02A First priority for use of the school district or approved cooperative IDEA base flow-through allocation is early childhood special education (Below Age Five programs and transportation).

012.02A1 IDEA base flow-through allocation can be considered in calculating the maximum amount of funds available under 92 NAC 51-012.07A.

012.02B The IDEA base flow-through allocation is distributed to school districts or approved cooperatives based on federal regulations implementing Part B of the IDEA.

012.02C The fiscal year for early childhood special education programs shall be September 1 to August 31.

012.03 The following additional reports shall be submitted to the Nebraska Department of Education for early childhood special education (Below Age Five):

012.03A Final Financial Reports

012.03A1 The Nebraska Department of Education shall make payments to school districts and approved cooperatives based on an approved IDEA Application and requests for payments submitted and supported with documentation. If applicable, a supplemental final grant payment will be made to qualifying school districts based on the Below Age Five final financial reports submitted to the Nebraska Department of Education which shall include the following:

012.03A1a Allowable expenditures for the appropriate school fiscal year;

012.03A1b A list of all special education staff and their FTE;

012.03A1c Tuition received from contracts and other sources;

012.03A1d Certification of authorized officer of the school board or authorized official of an approved cooperative that the reported expenditures have been paid; and

012.03A1e A copy of the billings from the service agencies for contracted programs.

012.03A2 Final financial reports shall be submitted to the Nebraska Department of Education on or before October 1 of each year for the preceding fiscal year.

012.03A3 A school district or approved cooperative paid for ineligible expenditures shall be required to return to the Nebraska Department of Education the amount determined to be ineligible; repayment of funds equal to the amount determined to be ineligible shall be made with non-federal funds and in no case may federal funds be used to refund the amount found to be misspent or misapplied.

012.03A4 The Nebraska Department of Education shall withhold any payments provided under Neb. Rev. Stat. § 79-1132 to school districts or approved cooperatives which, after final determination, received funds in excess of the appropriate allocation for the previous year(s). Payments which are withheld shall be no greater than the amount of overpayment. The Department of Education shall maintain an accurate account and a record of the reasons for such overpayments and the manner in which adjustments were made.

012.03A5 Allowable costs incurred for children with disabilities below age five shall be considered as total excess cost. The Nebraska Department of Education shall provide grants for the costs of the special education programs approved by the Nebraska Department of Education to the school district of residence for children with disabilities who are less than five years of age. The grants shall be one hundred percent of the costs of such programs and shall continue to be one hundred percent as long as the funding for such grants comes from federal funds. If federal funding pursuant to the Individuals with Disabilities Education Act, Part B and section 619 base flow-through allocation funds are inadequate at any time to pay one hundred percent of the allowable costs of such programs and transportation, the amount of the grant payments provided by the department shall be a pro rata amount as determined by the State Board of Education from appropriations for special education approved by the Legislature and based on such allowable costs for all special education programs and transportation to children with disabilities who are less than five years of age.

012.03A6 The Nebraska Department of Education may make a supplemental payment to a school district or approved cooperative not able to achieve the Department's annually established Below Age Five funding threshold through a combination of IDEA base and enrollment and poverty flow-through allocations. Contingent upon available federal funds, this annual threshold will be at least the same percentage of funding as is available through state general funds for school age services for that year.

012.04 Allowable Costs

012.04A The allowable costs for special education services are restricted to the following items, which shall be documented and are subject to audit:

012.04A1 Salaries of special education personnel as per 92 NAC 51-010 and clerical personnel directly associated with special education programs;

012.04A2 School district or approved cooperative share of fringe benefits for the special education staff;

012.04A2a Fringe benefits shall be limited to social security, retirement programs, workers' compensation, health, life, long term disability, and unemployment insurance.

012.04A3 Inservice costs directly related to the special education programs, provided that;

012.04A3a Allowable inservice expenditures are costs directly related to special education programs. Allowable activities must be designed to contribute to the professional growth and competence of staff serving children with disabilities and their parents through workshops, demonstrations, and school visits. Tuition and expenses of attending special education courses for college credit are not allowed.

012.04A3b Allowable costs include: presenter fees and expenses, mileage, board and room of staff to attend inservice programs, costs of substitutes for staff attending inservice programs, costs of inservice programs which directly assist regular educators in providing appropriate programs for children with verified disabilities in their classrooms, and costs of special education workshop attendance.

012.04A3c Costs of attending meetings conducted by organizations where only organizational business is conducted is not an allowable expense.

012.04A4 Travel costs incurred by the school district or approved cooperative in delivering the special education programs including costs for:

012.04A4a Children attending nonpublic schools who are required to leave the nonpublic school to receive special education and related services.

012.04A4b Children who are assigned to more than one attendance center to receive special education.

012.04A5 Travel costs incurred by parents to attend educational planning meetings held outside the resident district which are necessary to provide a free appropriate public education or to visit their child who is assigned to a residential program outside the district as agreed upon through the lEP process;

012.04A6 Costs of transporting children with disabilities which are authorized under Neb. Rev. Stat. § 79-1129 and Section 014 are budgeted and claimed separately;

012.04A7 Instructional equipment including assistive technology devices and equipment, supplies and publications necessary to aid the child in accomplishing the goals and objectives of the individual education program (lEP) or IFSP are allowable under this Chapter. The equipment, supplies, and publications shall be used by the child in association with the implementation of the child's lEP, IFSP or evaluation. This shall also include equipment, supplies, and publications used by staff when instructing children with verified disabilities; when evaluating children who are suspected of having disabilities; or when reevaluating children with verified disabilities. Allowable and reimbursable costs shall include printing, publication and postage costs that are necessary to carry out the provisions of this Chapter. This shall not include personal equipment and supplies or life support equipment and supplies. When equipment is used for purposes other than for special education, the school district or approved cooperative shall only claim the applicable prorated portion for special education payment;

012.04A8 Those contracted special education services in which children with disabilities are served by a service provider whose special education programs and rates have been approved by the Commissioner of Education or designee;

012.04A9 Facility costs for Below Age Five Programs are limited to plant operations, maintenance, repairs, and lease costs. A total facility square footage cost may also be claimed for facilities owned by the school district or approved cooperative that are being utilized for ECSE programs. When determining square footage costs, expenditures for facility improvements must be excluded;

012.04A10 Utilities; and

012.04A11 Cost for support services as defined in Neb. Rev. Stat. § 79-1125.01 and 92 NAC 51-003.59 and identified in 92 NAC 51-011.05 as the Flexible Funding Option.

012.04A11a Allowable support services must meet the requirements of 34 CFR 300.226 (coordinated early intervening services).

012.05 Program Cost Limitations

012.05A Supervision of early childhood special education programs is allowable as an expenditure for up to an amount not to exceed 8% of the school district's or approved cooperative's allowable special education program costs, minus the cost of program supervision. Supervision of early childhood special education programs includes clerical costs associated with supervision of early childhood special education programs; also refer to Supervision of School Age Special Education programs contained in 92 NAC 51-011.02C.

012.05B The cost of a superintendent or a principal, hired for the purpose of supervising general education, shall not be included in costs for below age five and school age special education programs.

012.05C Any IDEA funds remaining after meeting Below Age Five obligations or at the option of the school district or approved cooperative, funds used for Coordinated Early Intervening Services (CEIS) pursuant to 92 NAC 51-012.07A, may be used by the school district or approved cooperative for other allowable costs associated with serving children with disabilities, ages 5 to 21.

012.06 IDEA Enrollment and Poverty Flow-through Allocation

012.06A As per federal regulations, the enrollment and poverty flow-through allocation is distributed to school districts or approved cooperatives as follows:

012.06A1 85% on the basis of the number of children enrolled in public and nonpublic elementary schools and secondary schools within the jurisdiction of the district; and

012.06A2 15% in accordance with the number of children living in poverty within the jurisdiction of the district as determined by the Nebraska Department of Education.

012.06B A combination of IDEA base and IDEA Enrollment and Poverty allocations will be used by school districts or approved cooperatives to achieve the annual threshold as specified in 92 NAC 51-012.03A6.

012.06C Funds may be used to supplement school age and below age five special education allowable costs not covered by state or federal payments (Refer to 92 NAC 51-012.04 and 012.05).

012.06C1 School districts or approved cooperatives shall complete an annual application and following approval by the Nebraska Department of Education, the school district or approved cooperative may request payment for reimbursement of allowable special education expenditures.

012.06C2 School districts or approved cooperatives may receive funding by submitting requests for payment to NDE supported with documentation.

012.06C3 Funds shall be used only to pay the excess cost of providing special education and related services to children with disabilities except for purposes specified in 92 NAC 51-012.07A, and shall be used to supplement State, local and other federal funds and not to supplant such funds.

012.06C3a For purposes of 92 NAC 51-012, school district or approved cooperative eligibility for IDEA funds is determined by annually calculating separately both an elementary and secondary average per pupil expenditure (APPE).

012.06C3b A school district or approved cooperative meets the IDEA excess cost requirement if it has spent at least a minimum average elementary or secondary amount (APPE) for the education of its children with disabilities before funds under Part B are used.

012.06C4 Minor building modifications are allowable costs if approved through the Enrollment/Poverty Supplemental application process.

012.06C5 When expenditures are for resources benefiting all children, costs attributed to IDEA shall be on a prorata basis.

012.06C6 IDEA Enrollment and Poverty flow-through allocation can be considered in calculating the maximum amount of funds available under 92 NAC 51-012.07A.

012.06D An educational service unit, cooperative, or regional planning entity recognized by the State Board of Education pursuant to Neb. Rev. Stat. § 79-1135 may receive grant funding if a school district or approved cooperative authorizes through a signed certification the release of all or a portion of the school district or approved cooperative IDEA allocation to said entity.

012.07 Special Considerations

012.07A Except as provided in 34 CFR 300.646 provision of IDEA Coordinated Early Intervening Services (CEIS) are voluntary for school districts and approved cooperatives receiving an IDEA allocation. Such services are limited to 15% of the school district or approved cooperative yearly IDEA allocations and are to be designed for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who have not been identified as needing special education or related services but who need additional academic and behavioral support to succeed in a general education environment.

012.07B When implementing IDEA CEIS, a school district may carry out activities that include:

012.07B1 Professional development (which may be provided by entities other than a school district or approved cooperative) for teachers and other school staff to enable such personnel to deliver scientifically based academic instruction and behavioral interventions, including scientifically based literacy instruction, and, where appropriate, instruction on the use of adaptive and instructional software; and

012.07B2 Providing educational and behavioral evaluations, services, and supports, including scientifically based literacy instruction.

012.07C Each school district or approved cooperative that develops and maintains CEIS shall annually report the following information to the Department of Education:

012.07C1 The number of students served; and

012.07C2 The number of students served who subsequently receive special education and related services during the preceding two year period.

012.07D Payments for CEIS shall be contingent upon meeting the reporting requirements of 92 NAC 51-012.07C.

012.07D1 Payments for CEIS will be made according to 92 NAC 51-012.06C2.

012.07E Nothing in this subsection shall be construed to limit or create a right to a free appropriate public education under 92 NAC Rule 51.

012.07F Related services for children with verified disabilities are allowable if the services are listed in the lEP and are required to assist the child to benefit from his/her special education program.

012.07G Payments to a school district or approved cooperative contracting for special education services shall be limited to rates approved by the Commissioner of Education or designee.

012.07H Late submission of required forms will be subject to the procedures specified in 92 NAC 51-004.14.

012.08 Expenditures for Parentally-Placed Nonpublic School Children

012.08A To meet the requirement of 92 NAC 51-015.03C, each school district or approved cooperative must spend at least the following on providing special education and related services (including direct services) to parentally-placed nonpublic school children with disabilities:

012.08A1 For children aged 3 through 21, an amount that is the same proportion of the school district's or approved cooperative's total subgrant under section 611(f) of the IDEA as the number of nonpublic school children with disabilities aged 3 through 21 who are enrolled by their parents in nonpublic including religious, elementary schools and secondary schools located in the school district served by the school district or approved cooperative is to the total number of children with disabilities in its jurisdiction aged 3 through 21.

012.08A2 For children aged three through five, an amount that is the same proportion of the school district or approved cooperative's total subgrant under section 619(g) of the IDEA as the number of parentally-placed nonpublic school children with disabilities aged three through five who are enrolled by their parents in a nonpublic, including religious, elementary school located in the school district served by the school district or approved cooperative, is to the total number of children with disabilities in its jurisdiction aged three through five.

012.08A2a Children aged three through five are considered to be parentally-placed nonpublic school children with disabilities enrolled by their parents in nonpublic, including religious, elementary schools, if they are enrolled in a nonpublic school that meets the definition of elementary school in section 34 CFR 300.13.

012.08B If a school district or approved cooperative has not expended all of the funds described in 92 NAC 51-012.08A1 and 012.08A2 by the end of the fiscal year for which Congress appropriated the funds, the school district or approved cooperative must obligate the remaining funds for special education and related services (including direct services) to parentally-placed nonpublic school children with disabilities during a carry-over period of one additional year.

012.08C In calculating the proportionate amount of Federal funds to be provided for parentally-placed nonpublic school children with disabilities, the school district or approved cooperative, after timely and meaningful consultation with representatives of nonpublic schools under 92 NAC 51-015.03D, must conduct a thorough and complete child find process to determine the number of parentally-placed children with disabilities attending nonpublic schools located in the school district or approved cooperative.

012.08D Each school district or approved cooperative must, after timely and meaningful consultation with representatives of parentally-placed nonpublic school children with disabilities (consistent with 92 NAC 51-015.03D) determine the number of parentally-placed nonpublic school children with disabilities attending nonpublic schools located in the school district or approved cooperative. The count is conducted on December 1 of each year.

012.08D1 The count must be used to determine the amount that the school district or approved cooperative must spend on providing special education and related services to parentally-placed nonpublic school children with disabilities in the next subsequent fiscal year.

012.08E State and local funds may supplement and in no case supplant the proportionate amount of Federal funds required to be expended for parentally-placed nonpublic school children with disabilities under this Chapter.

012.08F Eligible school districts and approved cooperatives shall submit a budget and narrative for serving nonpublic school children as part of an approved IDEA Consolidated Application.

012.08F1 Requests for payments may be submitted to NDE with supporting documentation.

012.09 Children with Disabilities Who Are Covered by Public Benefits or Insurance

012.09A A school district or approved cooperative may use the Medicaid or other public benefits or insurance programs in which a child participates to provide or pay for services required under this Chapter, as permitted under the Medicaid in Public Schools (MIPS) (Neb. Rev. Stat. § 43-2511), except as provided in 92 NAC 51-012.09B.

012.09B With regard to services required to provide FAPE to an eligible child under Part B, the school district or approved cooperative:

012.09B1 May not require parents to sign up for or enroll in public benefits or insurance programs in order for their child to receive FAPE under this Chapter;

012.09B2 May not require parents to incur an out-of-pocket expense such as the payment of a deductible or co-pay amount incurred in filing a claim for services provided pursuant to this Chapter, but pursuant to 92 NAC 51-012.10C2 of this section, may pay the cost that the parents otherwise would be required to pay;

012.09B3 May not use a child's benefits under a public benefits or insurance program if that use would:

012.09B3a Decrease available lifetime coverage or any other insured benefit;

012.09B3b Result in the family paying for services that would otherwise be covered by the public benefits or insurance program and that are required for the child outside of the time the child is in school;

012.09B3c Increase premiums or lead to the discontinuation of benefits or insurance; or

012.09B3d Risk loss of eligibility for home and community-based waivers, based on aggregate health-related expenditures.

012.10 Use of Part B Funds

012.10A If a school district or approved cooperative is unable to obtain parental consent to use the parents' private insurance, or public benefits or insurance when the parents would incur a cost for a specified service required under this Chapter, to ensure FAPE the school district or approved cooperative may use its Part B funds to pay for the service.

012.10B To avoid financial cost to parents who otherwise would consent to use private insurance, or public benefits or insurance if the parents would incur a cost, the school district or approved cooperative may use its Part B IDEA funds to pay the cost that the parents otherwise would have to pay to use the parents' benefits or insurance (e.g., the deductible or co-pay amounts).

012.10C Proceeds from public benefits or insurance or private insurance.

012.10C1 Proceeds from public benefits or insurance or private insurance will not be treated as program income for the purposes of 34 CFR 80.25.

012.10C2 If a school district or approved cooperative spends reimbursements from Federal funds (e.g., Medicaid) for services under this part, those funds will not be considered "State or local'' funds for purposes of the maintenance of effort provisions in 92 NAC 51-012.01C.

012.11 Prior to accessing Public Benefits or Insurance or Private Insurance, school districts or approved cooperatives must meet requirements contained in 92 NAC 51-009.09A or 009.09B.

92 Neb. Admin. Code, ch. 51, § 012

Amended effective 5/17/2022