22-038 Code Vt. R. 22-000-038-X
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
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:
These rules are designed to:
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).
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.
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.
34 C.F.R. § 300.203 )
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.
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.
( 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:
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:
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.
The Secretary will review the extraordinary expenditure report in accordance Rules 1304 and 1305 and Rule 2200 (Independent Schools).
Special Education administration costs shall not be included as a cost of an individual student when reporting and calculating extraordinary special education expenditures.
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.
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).
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.
The Secretary will review the state-placed student expenditure report in accordance with Rules 1304 and 1305.
Payments for state placed students in residential placements and out-of-state public schools shall be in accordance with 16 V.S.A. § 2950
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).
The accounting for each collaborative program shall be in accordance with the technical guidance issued by the Agency and:
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:
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.
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.
( 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.
Effective Date:
These rules will take effect on July 1, 2022.
22-038 Code Vt. R. 22-000-038-X
July 1, 2022 Secretary of State Log #21-006
STATUTORY AUTHORITY:
16 V.S.A. § 164; C.101; 2018 Acts and Resolves No. 173, section 16, as amended by 2019 Acts and Resolves No. 72, section E.502.1 (directs the AOE to recommend rules to the SBE necessary to implement the Act).