Dated July 23, 2001

Mr. David Dickman

Special Education Coordinator

Salt River Pima-Maricopa Indian Community

10005 East Osborn Road

Scottsdale, Arizona 85256-9722

Dear Mr. Dickman:

This is in response to your letter to Kenneth R. Warlick, former
Director of the Office of Special Education Programs (OSEP), requesting
clarification of the distribution of Part B funds under the Individuals
with Disabilities Education Act (IDEA) from the Office of Indian
Education Programs located in the Bureau of Indian Affairs (BIA) under
the U.S. Department of the Interior. More specifically, you ask eight
questions regarding the distribution of funds under Part B of the IDEA
that are provided to the Secretary of the Interior for assistance for
the education of Indian children with disabilities on reservations. The
Department of the Interior administers funds provided by the Secretary
of Education under the IDEA through the Office of Indian Education
Programs located within the Bureau of Indian Affairs (BIA).

By way of background it is important to outline the broad IDEA statutory
requirements with respect to the requirements of providing special
education and related services under the IDEA to children with
disabilities in general and to Indian children on reservations. Part B
of the IDEA requires States that accept Part B funds to make available a
free appropriate public education (FAPE) to eligible children with
disabilities beginning at age 3 and possibly lasting to the 22^nd^
birthday depending on State law and practice. *See*, 20 U.S.C. §1412 and
34 C.F.R. Part 300. The Secretary of the Interior provides services
through the BIA in the Office of Indian Education Programs, to children
with disabilities on reservations aged 5 to 21, inclusive, enrolled in
elementary and secondary schools for Indian children operated or funded
by the Secretary of the Interior. 20 U.S.C. §1411(i)(1)(A). In the case
of Indian students aged 3 to 5, inclusive, the BIA remains responsible
for those children enrolled in programs affiliated with BIA schools that
are required by the States in which such schools are located to attain
or maintain State accreditation and which schools have been accredited
prior to October 7, 1991. 20 U.S.C. §1411(i)(1)(B). With respect to all
other children aged 3 to 21, inclusive, on reservations, the State
educational agency must be responsible for ensuring that all of the
requirements of Part B are implemented. 20 U.S.C. §1411(i )(1)(C).

1.  Can the Office of Indian Education Programs use more than 5% of its
    Part B funds for Administrative costs?

**Response:**

Under Part B of the IDEA, the Secretary of Education reserves 1.226
percent of funds under the Assistance to States for the Education of
Children with Disabilities program to provide assistance to the
Secretary of the Interior. 20 U.S.C. §1411(c). Eighty percent of this
appropriated amount must be used by the BIA to ensure that FAPE is made
available to all children with disabilities on reservations aged 5
through 21 who are enrolled in elementary and secondary schools for
Indian children operated or funded by the Secretary of the Interior. 20
U.S.C. §1411(i)(1)(A). The Secretary of Interior may use five percent of
this eighty percent or \$500,000, whichever is greater, for
administrative costs. 34 CFR §300.262(a). Of the reserved 1.226 percent,
twenty percent of these funds must be provided by the Secretary of the
Interior to the BIA to be distributed to tribes and tribal organizations
or consortia of those tribes or tribal organizations ("tribal entities")
to provide for the coordination of assistance for special education and
related services for children with disabilities aged 3 through 5 on
reservations served by elementary and secondary schools for Indian
children operated or funded by the Department of the Interior. 20 U.S.C.
§1411(i)(3)(A). None of these funds may be used by the Secretary of the
Interior for administrative purposes, including child count and the
provision of technical assistance. 20 U.S.C. §1411(i)(3)(F)

2.  Can the Office of Indian Education Programs use any Part B funds
    beyond the 5% for Administrative costs for providing any other
    services such as training?

**Response:**

As the response provided to question one above explains, the Department
of the Interior may use five percent, or \$500,000, whichever is greater
of the eighty percent of the amount allocated to meet the need for
assistance for the education of children with disabilities on
reservations aged 5 to 21, inclusive, enrolled in elementary and
secondary schools for Indian children operated or funded by the
Secretary of the Interior. Not more than this allotted amount may be
used for administrative costs.

However, we do not interpret administrative costs to include training
that will address the identified needs for in-service preparation to
ensure that personnel who work with children with disabilities
(including both professional and paraprofessional personnel who provide
services such as special education, regular education, and related
services). Preparation of general and special education personnel with
the content knowledge and collaborative skills needed to meet the needs
of children with disabilities is an important component to meet the need
for assistance of Indian children with disabilities on reservations.

3.  If the Office of Indian Education Programs can use only 5% of its
    Part B funds for administrative costs, does this also include
    funding for Special Education Coordinators at the 23 different
    Agency Offices around the country? The Special Education
    Coordinators are Bureau of Indian Affairs Administrative employees
    who monitor schools within its Agency and provide technical
    assistance and training to those schools.

**Response:**

The BIA has informed the OSEP that the duties of special education
coordinators include monitoring the schools, providing technical
assistance, and reviewing school applications in regard to compliance
with the requirements of Part B. Special education coordinators also
assist the schools in finding services for children who have low
incidence disabilities. In addition, in some instances, special
education coordinators recruit, hire, and supervise related services
staff. OSEP has confirmed during monitoring activities that the special
education coordinators perform these functions.

Therefore, because the main work of the BIA special education
coordinators is to ensure that FAPE is provided to those children for
whom the field Agency is responsible, OSEP believes that the Department
of the Interior may pay the salaries of special education coordinators
from the eighty percent portion of its Part B funds which must be used
in accordance with 34 CFR §300.715(b). However, if the special education
coordinators are performing some activities allowable only as
administrative costs under 34 CFR §300.262(a) on behalf of the BIA
central office, rather than solely for the schools in the Agency, then
the BIA needs to pay for the portion of the salaries allocated to those
activities with the amount set aside for administrative costs under 34
CFR §300.262(a).

4.  Can the Office of Indian Education Programs provide Part B funds to
    Bureau of Indian Affairs (BIA) funded schools based only upon
    documented IEP needs and funding priorities established by the BIA
    or do they have to follow the current 25 CFR Part 39.3-39.12
    regulations?

**Response:**

Regarding the eighty percent of Part B funds allocated to assist the
Secretary of Interior, Part B of IDEA does not establish requirements
for how the Secretary of the Interior must distribute those Part B funds
to schools operated or funded by the Secretary of the Interior. The
Secretary of Interior may determine how to distribute those Part B funds
to schools operated or funded by the BIA as long as those funds are
expended in accordance with the requirements of Part B of IDEA and its
implementing regulations at 34 CFR Part 300. Therefore, it is not
inconsistent with IDEA for the Office of Indian Education Programs to
provide Part B funds to BIA funded schools based only upon documented
IEP needs and funding priorities established by the BIA. Nor is it
inconsistent with IDEA for the Office of Indian Education Programs to
distribute Part B funds in accordance with the Indian School
Equalization Formula at 25 CFR Part 39.3-39.12.

The Secretary of the Interior must distribute the twenty percent of the
Part B funds allocated to provide for the coordination of assistance for
special education and related services for children with disabilities
aged three through five to each tribe or tribal organization based on
the number of children with disabilities ages 3 through 5 residing on
reservations as reported annually, divided by the total of those
children served by all tribes or tribal organizations. *See* 20 U.S.C.
1411 (i)(3)(B) and 34 CFR §300.716.

5.  Does the current 25 CFR Part 39.3-39.12 regulations for funding
    Special Education violate 34 CFR Part 300 regulations? If these
    regulations do violate 34 CFR Part 300 regulations, what
    specifically needs to be changed for the Office of Indian Education
    Programs to be in compliance?

**Response:**

The current regulations at 34 CFR Part 39.3-39.12 do not violate the
regulations implementing IDEA at 34 CFR Part 300. As noted above, IDEA
does not establish requirements for how the Secretary of Interior is
required to distribute the eighty percent of Part B funds allocated to
the Secretary of Interior to schools operated or funded by the BIA. As
you know, the Indian School Equalization Formula calculates per pupil
allocations and uses a weighted student unit formula. Children eligible
for special education and related services receive additional weights
and funding based on whether they are assigned service levels that are
"high" (15 hours or more special education per week) or "moderate" (less
than 15 hours special education per week). Section 612(a)(5)(B) of IDEA
requires that if a State, in this case the BIA, uses a funding mechanism
by which it distributes funds on the basis of the type of setting in
which a child is served, the funding mechanism may not result in
placements that violate the least restrictive environment requirements
and that if the BIA's policies and procedures do not ensure compliance,
the funding mechanism must be revised as soon a feasible to ensure that
it does not result in such placements. Based on the BIA's Improvement
Plan dated September 12, 2000, and the BIA's Eligibility Documents dated
July 2000, submitted to OSEP, the BIA is in the process of revising its
funding mechanism to meet the requirement of section 612(a)(5)(B).

6.  Can the Office of Indian Education Programs require all Bureau of
    Indian Affairs funded Schools to submit an application to justify
    additional Part B funding, and then distribute Part B funds
    subjectively based on what Office of Indian Education Programs sees
    as an unmet Special Education need or must they distribute Part B
    funds based on an objective formula in order to meet the
    requirements of 25 CFR Part 32.4?

**Response:**

OSEP is responsible for ensuring that the BIA meets the requirements of
Part B of IDEA and its implementing regulations at 34 CFR Part 300. The
Department of Interior issued the regulations at 25 CFR Part 32 titled
Indian Education Policies. 25 CFR §32.4 sets out the policies that the
Assistant Secretary for Indian Affairs in the Department of Interior
must follow in carrying out its education mission. The Department of
Education is not responsible for ensuring that the requirements of 25
CFR Part 32 are met.

7.  If the Office of Indian Education Programs changes how they
    distribute Part B funds according to the 25 CFR Part 39.10-12. What
    is the correct process for the Office of Indian Education Programs
    to change the current regulations that they have in place?

**Response:**

The regulations at 25 CFR Part 39 were issued by the Department of
Interior. If the Office of Indian Education Programs changes how it
distributes Part B funds to BIA funded schools according to 25 CFR
§39.10-12, it must follow its own procedures for making regulatory
changes.

8.  Who is responsible to ensure that the Office of Indian Education
    Programs complies with the Funding requirements in the 34 CFR Part
    300 and 25 CFR Part 39.3-39.12?

**Response:**

The Department of Education is ultimately responsible to ensure that the
Department of the Interior complies with all of the requirements of the
IDEA that apply to the Department of the Interior for the purposes of
providing special education and related services to Indian children with
disabilities. The Secretary of the Interior must provide the Secretary
of Education information that meets the requirements of sections
612(a)(1), (3)-(9), (10(B), (C), (11)-(12), (14)-(17), (20), (21) and
(22) of the IDEA (including monitoring and evaluation activities). The
Secretary of the Interior must also provide information that meets the
requirements of section 612(b) and (e); and section 613(a)(1),
(2)(A)(i), (6), and (7) of the IDEA as well as the regulatory
requirements that implement these sections of the IDEA. *See* §§300.260
through 300.267. The Department of Education is not responsible for
ensuring that the requirements of 25 CFR Part 39 are met.

Because some of your questions concern requirements established by the
Department of Interior, you may want to direct your inquiry to:

> Dr. Angelita Felix
>
> Bureau of Indian Affairs
>
> Office of Indian Education Programs
>
> Human Resources Office
>
> 201 3rd Street NW, Suite 310
>
> Albuquerque, New Mexico 87102

We hope that you find this explanation helpful. If you need further
assistance, please call Ms. Sarah Willis at 202-205-8658 or Mr. Troy
Justesen at 202-205-9053.

> Sincerely,
>
> /signed Patricia J. Guard/
>
> Patricia J. Guard
>
> Acting Director
>
> Office of Special Education Programs

cc: Dr. Angelita Felix