Authenticated PDF VersionNon-regulatory note: Some sections of this regulation are shown in italics. Federal law requires that the Delaware Department of Education identify in writing any Delaware rule, regulation or policy that is a state-imposed requirement rather than a federal requirement (see 20 USC §14079a)(2)). The italicized portions of this regulation are Delaware-imposed requirements for the education of children with disabilities and are not specifically required by federal special education law and regulations.
1.0 Condition of Assistance and Consistency with State Policies
(Authority: 20 U.S.C. 1413(a); 14 Del.C. §3110)
1.2 The LEA, in providing for the education of children with disabilities within its jurisdiction, shall have in effect policies, procedures, and programs that are consistent with the State policies and procedures established under 14 DE Admin. Code 923, subsection 1.2 through Section 56.0 and Sections 67.0 through 74.0. In addition, each public agency providing services to children with disabilities shall use any forms or procedures as from time to time are specifically developed or promulgated by DOE in implementing the requirements of these regulations.
(Authority: 20 U.S.C. 1413(a)(1); 14 Del.C. §3110)
2.1 General: Amounts provided to the LEA under Part B of the Act shall be expended in accordance with the applicable provisions of these regulations; shall be used only to pay the excess costs of providing special education and related services to children with disabilities, consistent with subsection 2.2; and shall be used to supplement State, local, and other Federal funds and not to supplant those funds.
2.2.2.1 The amount described in subsection 2.2.2 is determined in accordance with the definition of excess costs in 14 DE Admin. Code 922, Section 3.0. That amount may not include capital outlay or debt service.
2.2.3 If two or more LEAs jointly establish eligibility in accordance with Section 23.0, the minimum average amount is the average of the combined minimum average amounts determined in accordance with the definition of excess costs in 14 DE Admin. Code 922, Section 3.0 in those agencies for elementary or secondary school students, as the case may be.
(Authority: 20 U.S.C. 1413(a)(2)(A); 14 Del.C. §3110)
3.1 General: Except as provided in Sections 4.0 and 5.0, funds provided to an LEA under Part B of the Act shall not be used to reduce the level of expenditures for the education of children with disabilities made by the LEA from local funds below the level of those expenditures for the preceding fiscal year.
3.2 Standard: Except as provided in subsection 3.3, an LEA complies with subsection 3.1 for purposes of establishing the LEA's eligibility for an award for a fiscal year if the LEA budgets, for the education of children with disabilities, at least the same total or per capita amount from either of the following sources as the LEA spent for that purpose from the same source for the most recent prior year for which information is available:
3.2.2 The combination of State and local funds.
(Authority: 20 U.S.C. 1413(a)(2)(A); 14 Del.C. §3110)
4.0 Exception to Maintenance of Effort
4.1.2 A decrease in the enrollment of children with disabilities.
4.1.3.1 Has left the jurisdiction of the agency;
4.1.3.3 No longer needs the program of special education.
4.1.3.5 The assumption of cost by any high cost fund operated by the DOE under 34 CFR § 300.704(c).
(Authority: 20 U.S.C. 1413(a)(2)(B); 14 Del.C. §3110)
5.0 Adjustment to Local Fiscal Efforts in Certain Fiscal Years
5.1 Amounts in excess: Notwithstanding the requirement in subsection 2.1 that amounts provided to the LEA under Part B of the Act shall be used only to pay the excess costs of providing special education and related services to children with disabilities, and further notwithstanding subsections 2.2 and 3.1, and except as provided in subsection 5.4 and 34 CFR § 300.230(e)(2)(relating to adjustments to State level fiscal efforts in certain fiscal years), for any fiscal year for which the allocation received by an LEA under 14 DE Admin. Code 928, Section 5.0 exceeds the amount the LEA received for the previous fiscal year, the LEA may reduce the level of expenditures otherwise required by subsection 3.1 by not more than 50 percent of the amount of that excess.
5.3 State prohibition: Notwithstanding subsection 5.1, if the DOE determines that an LEA is unable to establish and maintain programs of FAPE that meet the requirements of section 613(a) of the Act and these regulations or the DOE has taken action against the LEA under 14 DE Admin. Code 927 the LEA is prohibited from reducing the level of expenditures in subsection 5.1 for that fiscal year.
(Authority: 20 U.S.C. 1413(a)(2)(C); 14 Del.C. §3110)
6.0 School Wide Programs under Title I of the ESEA
6.1 General: Notwithstanding the provisions of Sections 2.0 and 3.0 or any other provision of Part B of the Act, an LEA may use funds received under Part B of the Act for any fiscal year to carry out a school wide program under section 1114 of the ESEA, except that the amount used in any school wide program may not exceed the amount received by the LEA under Part B of the Act for that fiscal year; divided by the number of children with disabilities in the jurisdiction of the LEA; and multiplied by the number of children with disabilities participating in the school wide program.
(Authority: 20 U.S.C. 1413(a)(2)(D); 14 Del.C. §3110)
The LEA shall ensure that all personnel necessary to carry out Part B of the Act are appropriately and adequately prepared, subject to the requirements of 14 DE Admin. Code 923, Section 56.0 (related to personnel qualifications) and section 2122 of the ESEA.
(Authority: 20 U.S.C. 1413(a)(3); 14 Del.C. §3110)
(Authority: 20 U.S.C. 1413(a)(4); 14 Del.C. §3110)
9.0 Treatment of Charter Schools and their Students
9.2 Charter schools that are public schools of the LEA:
9.2.1.2 Provide funds under Part B of the Act to those charter schools:
9.2.2 If the public charter school is a school of an LEA that receives funding under 14 DE Admin. Code 928, Section 5.0 and includes other public schools:
9.2.2.1 The LEA is responsible for ensuring that the requirements of these regulations are met; and
9.2.2.2 The LEA shall meet the requirements in subsection 9.2.1.
9.3 Public charter schools that are LEA’s: If the public charter school is an LEA, consistent with the definition of LEA under 14 DE Admin. Code 922, Section 3.0, that receives funding under 14 DE Admin. Code 928, Section 5.0 that charter school is responsible for ensuring that the requirements of these regulations are met.
(Authority: 20 U.S.C. 1413(a)(5); 14 Del.C. §§505 and 3110)
10.0 Coordination with NIMAC and Purchase of Instructional Materials
10.1 Coordination with NIMAC: LEAs and other public agencies shall coordinate with the National Instructional Materials Access Center (NIMAC) for the purposes of providing instructional materials to blind persons or other persons with print disabilities. When purchasing print instructional materials, LEAs and other public agencies shall acquire those instructional materials in the same manner, and subject to the same conditions as the DOE under 14 DE Admin. Code 923, Section 72.0.
10.2 Responsibility of LEA and other public agencies: LEAs and other public agencies shall ensure that children with disabilities who need instructional materials in accessible formats but are not included under the definition of blind or other persons with print disabilities in 14 DE Admin. Code 923, subsection 72.4 or who need materials that cannot be produced from NIMAS files, receive those instructional materials in a timely manner.
(Authority: 20 U.S.C. 1413(a)(6); 14 Del.C. §3110)
LEAs shall provide the DOE, consistent with a format and timetable acceptable to the Department, with information necessary to enable the DOE to carry out its duties under Part B of the Act, including, with respect to information relating to the performance of children with disabilities participating in programs carried out under Part B of the Act.
(Authority: 20 U.S.C. 1413(a)(7); 14 Del.C. §3110)
(Authority: 20 U.S.C. 1413(a)(8); 14 Del.C. §3110; see also 29 Del.C. §10003)
13.0 Records Regarding Migratory Children with Disabilities
LEAs shall cooperate with appropriate Delaware and federal agencies to ensure the linkage of records pertaining to migratory children with disabilities for the purpose of electronically exchanging, among the States, health and educational information regarding those children.
(Authority: 20 U.S.C. 1413(a)(9); 14 Del.C. §3110)
20.0 Exception for Prior Local Plans
20.1 General: If an LEA or a State agency described in Section 28.0 has on file with the DOE policies and procedures that demonstrate that the LEA or State agency meets any requirement of subsection 1.1, including any policies and procedures filed under Part B of the Act as in effect before December 3, 2004, the DOE shall consider the LEA or State agency to have met that requirement for purposes of receiving assistance under Part B of the Act.
20.2 Modification made by an LEA or State Agency: Subject to subsection 20.3, policies and procedures submitted by an LEA or a State agency in accordance with 14 DE Admin. Code 924 remain in effect until the LEA or State agency submits to the DOE the modifications that the LEA or State agency determines are necessary.
20.3 Modifications required by the DOE. The DOE may require an LEA or a State agency to modify its policies and procedures, but only to the extent necessary to ensure the LEA's or State agency's compliance with Part B of the Act or with Delaware law, if:
20.3.3 There is an official finding of noncompliance with Federal or State law or regulations.
20.4 Nothing in this section shall be construed to restrict the DOE from utilizing any other method, activity or authority available to monitor and enforce the requirements of Part B of the Act and these regulations.
(Authority: 20 U.S.C. 1413(b); 14 Del.C. §3110)
21.0 Notification of LEA or State Agency in Case of Ineligibility
If the DOE determines that an LEA or State agency is not eligible under Part B of the Act, then the DOE shall notify the LEA or State agency of that determination; and provide the LEA or State agency with reasonable notice and an opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c); 14 Del.C. §3110)
22.0 LEA and State Agency Compliance
22.1 General: If the DOE, after reasonable notice and an opportunity for a hearing, finds that an LEA or State agency that has been determined to be eligible under 14 DE Admin. Code 924 is failing to comply with any requirement described in Sections 1.0 through 13.0, any further payments to the LEA or State agency shall be reduced or not provided until the DOE is satisfied that the LEA or State agency is complying with that requirement.
22.2 Notice requirement: Any State agency or LEA in receipt of a notice described in subsection 22.1 shall, by means of public notice, take the measures necessary to bring the pendency of an action pursuant to Section 22.0 to the attention of the public within the jurisdiction of the agency.
22.3 Consideration: In carrying out its responsibilities under Section 22.0, the DOE shall consider any decision resulting from a hearing held under 14 DE Admin. Code 926, Sections 11.0 through 33.0 that is adverse to the LEA or State agency involved in the decision.
(Authority: 20 U.S.C. 1413(d); 14 Del.C. §3110)
23.0 Joint Establishment of Eligibility
23.1 General: The DOE may require an LEA to establish its eligibility jointly with another LEA if the DOE determines that the LEA will be ineligible under 14 DE Admin. Code 924 because the agency will not be able to establish and maintain programs of sufficient size and scope to effectively meet the needs of children with disabilities.
23.2 Charter school exception: The DOE may not require a charter school that is an LEA to jointly establish its eligibility under subsection 23.1 unless the charter school is explicitly permitted to do so under the State's charter school statute.
23.3 Amounts of payments: If the DOE requires the joint establishment of eligibility under subsection 23.1, the total amount of funds made available to the affected LEAs shall be equal to the sum of the payments that each LEA would have received under 14 DE Admin. Code 928, Section 5.0, if the agencies were eligible for those payments.
(Authority: 20 U.S.C. 1413(e)(1) and (2); 14 Del.C. §3110)
24.0 Requirements for Establishing Eligibility
24.1 Requirements for LEAs in general: LEAs that establish joint eligibility under Sections 23.0 and 24.0 shall adopt policies and procedures that are consistent with the State’s policies and procedures and be jointly responsible for implementing programs that receive assistance under Part B of the Act.
24.3 Additional requirements: Notwithstanding any other provision of Sections 23.0 and 24.0, an educational service agency shall provide for the education of children with disabilities in the least restrictive environment, as required by 14 DE Admin. Code 923, Section 14.0.
(Authority: 20 U.S.C. 1413(e)(3) and (4); 14 Del.C. §3110)
26.0 Early Intervening Services
26.1 General: An LEA may not use more than 15 fifteen percent (15%) of the amount the LEA receives under Part B of the Act for any fiscal year, less any amount reduced by the LEA pursuant to Section 5.0, if any, in combination with other amounts (which may include amounts other than education funds), to develop and implement coordinated, early intervening services, which may include interagency financing structures, for students in kindergarten through grade 12 (with a particular emphasis on students in kindergarten through grade 3) who are not currently identified as needing special education or related services, but who need additional academic and behavioral support to succeed in a general education environment.
26.3 Construction: Nothing in Section 26.0 shall be construed to either limit or create a right to FAPE under Part B of the Act or to delay appropriate evaluation of a child suspected of having a disability.
26.4.1 The number of children served under Section 26.0 who received early intervening services; and
26.5 Coordination with ESEA: Funds made available to carry out Section 26.0 may be used to carry out coordinated, early intervening services aligned with activities funded by, and carried out under the ESEA if those funds are used to supplement, and not supplant, funds made available under the ESEA for the activities and services assisted under this section.
(Authority: 20 U.S.C. 1413(f); 14 Del.C. §3110)
27.0 Direct Services by the DOE
27.2 DOE administrative procedures:
27.2.2 The excess cost requirements of subsection 2.2 do not apply to the DOE.
(Authority: 20 U.S.C. 1413(g); 14 Del.C. §3110)
28.1 Any state agency that desires to receive a sub grant for any fiscal year under 14 DE Admin. Code 928, Section 5.0 shall demonstrate to the satisfaction of the DOE that:
28.1.2 The agency meets the other conditions of this subpart that apply to LEAs.
(Authority: 20 U.S.C. 1413(h); 14 Del.C. §3110)
29.1 Each public agency shall maintain a discipline record for children with disabilities in accordance with 14 DE Admin. Code 252.
29.2 If a child with a disability transfers from 1 school to another, the transmission of such child's records shall include both the child's current IEP and discipline record in accordance with 14 DE Admin. Code 252.
(Authority: 20 U.S.C. 1413(i); 14 Del.C. §3110)
