Dated August 16, 2000

Ms. Julie Goings

Education Specialist

Bureau of Indian Affairs Education

P.O. Box 333

Pine Ridge, South Dakota 57770

Dear Ms. Goings:

This is in response to your letter dated July 20, 1999 containing nine
questions about services provided to children with disabilities aged 0
through 5 who are members of the Oglala Sioux Tribe and the Oglala Sioux
Tribe's responsibilities for assisting in providing those services. We
apologize for the delay in responding but your questions cover broad and
complex areas.

The Office of Special Education Programs (OSEP) administers the
Individuals with Disabilities Education Act (IDEA), which has two major
components: Part C and Part B. Part C of IDEA requires States that
accept Part C funds to provide early intervention services for children
with disabilities under the age of three. *See*, 20 U.S.C. §§1431
through 1445 and 34 C.F.R. Part 303. Part B of IDEA requires that States
provide a free appropriate public education (FAPE) for 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. In many of your questions, you ask about IDEA
services for children aged 0 through 5 and thus our responses to those
inquiries include separate answers for the Part C and Part B
requirements. However, where your inquiry only addresses Part C, we have
only responded regarding Part C.

[Question]{.underline}:

1.  Who is considered the Lead Agency for 0-5 programs for the BIA
    referred to in the regulations ?

[Response]{.underline}:

While the term lead agency applies only to Part C and the term State
Educational Agency (SEA) applies to Part B, in South Dakota, the agency
responsible for implementing both Part C and Part B is the same; it is
the South Dakota Department of Education and Cultural Affairs (DECA).
However, DECA's responsibilities under Part C differ from those under
Part B.

Under Part C, DECA is responsible for ensuring that "early intervention
services are available to all infants and toddlers with disabilities in
the State and their families, including Indian infants and toddlers with
disabilities and their families residing on a reservation geographically
located in the State." 20 U.S.C. §1434 and 1435(a)(2); 34 C.F.R.
§303.140(b). Under Part B of IDEA, the SEA is responsible for providing
FAPE to children with disabilities in the State's mandated age range,
which in South Dakota includes children with disabilities aged 3 through
5. 20 U.S.C. §1412.

Your question also asks about the role of the Bureau of Indian Affairs
within the U.S. Department of Interior ("BIA"). Under Part B of IDEA,
the Secretary reserves 1.226% 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 these funds are used by the BIA to ensure that FAPE is
provided to all 5 through 21 year old children with disabilities
enrolled in elementary and secondary schools for Indian children
operated or funded by the Department of the Interior. 20 U.S.C.
§1411(i)(1)(A). The SEA is responsible for making FAPE available to all
other children with disabilities aged 3 through 21 on reservations with
a few exceptions where certain preschool-aged children remain the
responsibility of the BIA. 20 U.S.C. §1411(i)(1)(C). For preschool-aged
children, the BIA remains responsible for those 3 through 5 year old
Native American children with disabilities 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).

Twenty percent of these Part B funds are provided to the BIA to
distribute to tribes and tribal organizations or consortia of these
entities ("tribal entities") 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
Interior. 20 U.S.C. § 1411(i )(3)(A). The BIA must distribute these
funds to the tribal entities and may not use these funds for
administrative purposes, including child count and the provision of
technical assistance. 20 U.S.C. §1411(i)(3)(F). These funds are to be
used by tribal entities "to assist in child find, screening, and other
procedures for the early identification of children aged 3 through 5,
parent training, and the provision of direct services." 20 U.S.C.
§1411(i)(3)(D). Given the limited funds available to tribal entities and
the fact that other entities may exist to provide such services, OSEP
has previously discouraged the use of these funds for the provision of
direct services by tribal entities. *See*, January 12, 1993 OSEP
Memorandum; a copy of this Memo is attached for your easy reference. For
Fiscal Year July 1, 1999 through June 30, 2000, according to the BIA,
the Oglala Sioux Tribe received 5.1559% of BIA's Part B funds for
children aged 3 through 5, which was approximately \$545,000.

A portion (1.25%) of Part C funds under the Early Intervention Program
for Infants and Toddlers with Disabilities is provided to the BIA to
distribute to tribes and tribal organizations or consortia of these
entities ("tribal entities") for the coordination of assistance in the
provision of early intervention services by the States to infants and
toddlers with disabilities and their families on reservations served by
elementary and secondary schools for Indian children operated or funded
by the Department of Interior. 20 U.S.C. §1443(b)(1). The BIA must
distribute these Part C funds to the tribal entities and may not use
these funds for administrative purposes, including child count and the
provision of technical assistance. 20 U.S.C. 1443(b)(6). These Part C
funds are to be used by the tribal entities "to assist the States in
child find, screening, and other procedures for the early identification
of Indian children under 3 years of age and for parent training." 20
U.S.C. §1443(b)(4). These funds also may be used by the tribal entities
to provide early intervention services. ." 20 U.S.C. §1443(b)(4). Given
the limited funds available to tribal entities and the fact that other
entities may exist to provide such services, OSEP has previously
discouraged the use of funds for the provision of direct Part C services
by tribal entities. *See*, January 12, 1993 OSEP Memorandum. For Fiscal
Year July 1, 1999 through June 30, 2000, according to the BIA, the
Oglala Sioux Tribe received 8.8310% of BIA's Part C funds or
approximately \$403,400.

[Question]{.underline}:

2.  Who is the Service Coordinator for the Oglala Sioux Tribe (OST)? Is
    this the same as the Single Point of Contact?

[Response]{.underline}:

The State, here DECA, has the responsibility for supervising the
provision of service coordinators under Part C and is best able to
identify the service coordinator(s) for the Oglala Sioux Tribe. The DECA
contact information is listed below in response to question 7. We cannot
confirm whether in all cases the Single Point of Contact you identify in
your inquiry is the same individual as the Service Coordinator for the
Oglala Sioux Tribe but we note the following Federal Part C requirements
regarding service coordination.

The term "Service Coordinator" is a term under Part C of IDEA. 20 U.S.C.
§1432(4)(E)(vii); 34 C.F.R. §303.23. The regulations under Part C
mandate that States provide each Part C eligible child and the child's
family one service coordinator. The role of the service coordinator,
among other duties, is to serve as a "single point of contact in helping
parents to obtain the services and assistance they need." 34 C.F.R.
§303.23(a)(2)(ii). The selection of the Service Coordinator in each
State is to be made consistent with Part C. 34 C.F.R. §303.23(c). The
qualifications for a Service Coordinator are set forth at 34 C.F.R.
§303.23 (d).

[Question]{.underline}:

3.  Can the Direct Services in 303.3(b) be provided by OST \[Oglala
    Sioux Tribe\]?

[Response]{.underline}:

The regulation, 34 C.F.R. §303.3(b), applies to services only under Part
C, not Part B. Under Part C, tribal entities, such as the Oglala Sioux
Tribe may provide direct services to children under three through
Federal IDEA funds by:

(1) Using funds provided to tribal entities under IDEA §643(b)(4) \[note
    that OSEP has discouraged tribal entities from using its limited
    resources for direct services to avoid duplication\]; and/or

(2) Serving as a service provider/contractor for DECA, the lead agency
    under Part C.

[Question]{.underline}:

4.  In writing the Statement of Work for use of Federal funds for 0-5
    year olds that flow\
    directly to tribes, should one follow §303.145 (Description of Use
    of Funds)?

[Response]{.underline}:

The IDEA does not include the term "Statement of Work" and we assume it
is a term of art under the BIA's administration of IDEA funds. The IDEA
regulation you cite, 34 C.F.R. §303.145, applies to State Applications
under Part C. Since the Oglala Sioux Tribe is not a State, OSEP does not
require the Oglala Sioux Tribe to provide the information in this
regulation to OSEP. IDEA §§643(b)(1) & (4) describe the activities that
the Oglala Sioux Tribe may support with its BIA Part C funds. IDEA, Part
C only requires the Oglala Sioux Tribe to meet the information and
reporting requirements for the funds it receives from the BIA; the
requirements are set forth at IDEA §§643(b)(3) and 643(b)(5). These Part
C reporting requirements are applicable to the BIA. Since BIA is
responsible for monitoring the use of the funds it distributes, there
may be additional information required by the BIA/Secretary of Interior.
We direct your inquiry to the BIA contact, who is:

> Dr. Angelita Felix
>
> Bureau of Indian Affairs
>
> Division of School Program Support and Improvement
>
> 500 Gold Ave. SW, Rm. 7202
>
> Albuquerque, New Mexico 87103-1088

As for Part B funds, there are similar reporting requirements to the BIA
for the Part B funds the Oglala Sioux Tribe receives from the BIA. See
20 U.S.C. §§1411(i)(3)(C) and (E). The BIA may have additional
requirements to implement its monitoring responsibilities.

[Question]{.underline}:

5.  In the Statewide System of early intervention services should the
    OST \[Oglala Sioux Tribe\] adhere to South Dakota (SD) State\'s
    system of Early Intervention?

[Response]{.underline}:

We assume your inquiry is limited to the Part C program because you
reference only early intervention services in this question. If the
Oglala Sioux Tribe is receiving Part C funds (as a contractor), whether
through the BIA or through the State, it must comply with Federal Part C
requirements. See the response to the prior question (4) regarding the
Oglala Sioux Tribe's informational and reporting requirements for BIA
pass-through funds. If the Oglala Sioux Tribe receives funds through the
BIA, there may be additional informational and reporting requirements
imposed by the BIA.

DECA in South Dakota is responsible for administering Part C and
providing Part C services to all infants and toddlers in the State. If
the Oglala Sioux tribe is serving as a contractor for the State in
providing services, then it must comply with State contract provisions
and early intervention policies. The DECA contact information is in
response 7 below.

[Question]{.underline}:

6.  Is the SD INTERAGENCY COORDINATING COUNCIL the same as YAMNI?

[Response]{.underline}:

The short response is no.

A State receiving Part C funds is required to establish a State
Interagency Coordinating Council (SICC). The SICC's responsibilities are
set forth in IDEA §641 and 34 C.F.R. §§303.650 through 303.654. The
Governor appoints the SICC members, which may include a member from the
BIA, the Indian Health Service or a tribal entity. The SICC's role is to
assist the lead agency (DECA) in identifying sources of funding and
developing a coordinated early intervention program of services for
infants and toddlers with disabilities in the State and their transition
to preschools. This includes children who live on reservations
geographically located within the State. The SICC prepares and submits
an annual report to the Governor and the Secretary of Education under
§641(e)(1)(D) of IDEA. This SICC annual report may be combined with the
State's required annual Performance Report under 34 C.F.R. §80.40 to
serve as one annual report.

It is our understanding that YAMNI is one of the 22 local networks of
service providers in South Dakota responsible for the implementation of
services for infants and toddlers with disabilities. YAMNI's area of
service includes the Pine Ridge reservation where the Oglala Sioux Tribe
resides. For specific information about YAMNI and the State's agreement
with YAMNI or South Dakota's SICC, contact DECA.

[Question]{.underline}:

7.  Where can the following documents be found: SD Annual Report, State
    Application, State Plan, Central Directory of Information, and
    Statement of Assurances?

[Response]{.underline}:

South Dakota must submit to OSEP a State Application for Part C funds
and Policies and Procedures for Part B funds. Both include a Statement
of Assurances. There is no separate document entitled State Plan. The
Part C Application was last updated by DECA in 1998 after IDEA
Amendments were adopted in 1997. DECA has submitted comprehensive new
Part B Policies and Procedures in April, 2000, which are undergoing
review by OSEP.

As for annual reporting, DECA's Performance Report required under 34
C.F.R. §80.40 is often combined for Part C with the SICC Annual Report
required under IDEA §641. In addition, DECA is required to submit an
annual child count, which is a separate annual report. The most current
Annual Report available for South Dakota is the 1999 report.

Due to the length of State applications, the volume of requests, and
agency costs, requests for copies such documents must be made under the
Freedom of Information Act (FOIA). The request for the Application
(either C or B) or for the Annual Report (either the SICC Report,
State's Performance Report or Child Count) should be in writing and
should specify the year and type needed. The request should be submitted
to:

> Ms. Melzetta Friday
>
> FOIA Coordinator for OSERS

MES, Switzer, Room 3123

300 C Street, S.W.

Washington, D.C. 20202

You may also request these documents from the State agency for South
Dakota, DECA. The DECA contact information is:

Deborah Barnett, Director of Special Education

South Dakota Department of Education & Cultural Affairs

700 Governors Drive

Pierre, South Dakota 57501-2291

Tel.: (605) 773-3678.

As for the Central Directory, §635(a)(7) of IDEA Part C and 34 C.F.R.
§303.301 require the State to maintain a central directory of
information on early intervention services, resources, and experts as
well as research and demonstration projects. However, the State is not
required to provide an updated directory to OSEP and the central
directory may be in some States a repository of information and not a
single document. However, this information is to be made available to
the public. You may contact DECA to request how to access the Central
Directory as well as to request a copy of the State Application and
Annual Report.

[Question]{.underline}:

8.  Who has the Financial Accountability for the funds that come to the
    Oglala Sioux Tribe for children 0-5 under IDEA: South Dakota or the
    Oglala Sioux Tribe Early Intervention Program?

How is the STATE (SD) & OST \[Oglala Sioux Tribe\]Early Intervention
Program separated as far as funding, compliance, services provided, etc?

[Response]{.underline}:

As noted earlier, under both Part C and Part B, the BIA has the
responsibility for ensuring that the funds that it distributes to tribes
are used consistently with the IDEA and the regulations applicable to
these IDEA programs. 20 U.S.C. §§1411(i) and 1443(b).

In order to be eligible for a grant under Part B §611(i )(3) and Part C
§643(b), a tribe, tribal organization or consortium must make a biennial
report to the Secretary of Interior of activities undertaken with these
funds. 20 U.S.C. §§1411(i)(3)(E) and 1443(b)(5). These activities
include \"the number of contracts and cooperative agreements entered
into, the number of children contacted and receiving services for each
year, and the estimated number of children needing services during the 2
years following the year in which the report is made. . . . The
Secretary of Education may require any additional information from the
Secretary of the Interior.\"  20 U.S.C. §§1411(i)(3)(E) and 1443(b)(5). 

Under Part C, the State has the responsibility to assure that all
components of the Part C early intervention system (including child
find, evaluations, service coordination, early interventions services,
etc.) are provided to all eligible Part C children in the State
including those on the reservation. Under Part B, the SEA must make FAPE
available to all 3 through 5-year-old Native American children with
disabilities residing on reservations, with the exceptions discussed in
question 1. The State, however, has no financial accountability or
control over the Part C and Part B funds that the Oglala Sioux Tribe
receives from the BIA. The State's obligation is to coordinate with the
Oglala Sioux Tribe to minimize duplication of services and to assure
that all Part C and Part B eligible children receive the services and
rights to which they are entitled. If a tribe receives Part C or Part B
funds from the State, it is accountable to the State for those funds.

In addition, the Education Department General Administrative Regulations
(EDGAR) at 34 C.F.R. Part 80 (Uniform Administrative Requirements for
State, Local, and Tribal Governments) apply to the Oglala Sioux Tribe
for the funds it receives from the BIA under IDEA §§611(i)(3) and
643(b). 34 C.F.R. §80.1. Section 80.22 of EDGAR incorporates, with
respect to accounting procedures, Office of Management and Budget (OMB)
Circular A-87, "Cost Principles for State, Local and Indian Tribal
Governments". In §C.1. of "Basic Guidelines" which is Attachment A to
the OMB Circular, the general criteria for allowable costs are listed.
This list includes the following relevant criteria: the cost must be
necessary and reasonable for proper and efficient performance and
administration of Federal funds. These would include funds received by
the Oglala Sioux Tribe under IDEA §§611(i)(3) and 643(b). Sections C.2.
and C.3. respectively address the definitions of reasonable costs and
allocable costs. A copy of OMB Circular A-87 and 34 C.F.R. Part 80 is
enclosed for your reference as well as the 1999 IDEA regulations
implementing the IDEA Amendments of 1997.

[Question]{.underline}:

9.  Can the Statement of Work plan for the OST \[Oglala Sioux Tribe\]
    Early Intervention include both PART C & PART B requirements and can
    they be included in one document?

[Response]{.underline}:

Under Part C, if the Oglala Sioux Tribe receives funds from the BIA
under §643, it must comply with the informational and reporting
requirements at IDEA §§643(b)(3) and (b)(5). Under Part B, if Oglala
Sioux Tribe receives funds from the BIA under §611, it must comply with
the informational requirements at IDEA §611(i)(3)(C) and (E). BIA must
determine whether these requirements may be combined with any other
requirements it may have, including the Statement of Work you reference.
Your BIA contact is noted above.

If your inquiry relates to the information required by the Oglala Sioux
Tribe for contracting purposes under Part C funds provided to the State,
we suggest you contact the State ( DECA) as the State is the responsible
contracting party and lead agency under Part C.

We hope that this information provides helpful clarification on these
issues. As the information you requested affects the administration of
other programs, we are providing a copy of this response to the DECA,
BIA and Oglala Sioux Tribe Early Intervention Program contacts listed
below. If you have further questions regarding OSEP's implementation of
IDEA as it relates to the tribal entities, please contact JoLeta
Reynolds at (202) 205-5507 or Terese Lilly, OSEP Part C contact for
South Dakota, at (202) 205-0151.

Sincerely,

Signed Kenneth R. Warlick/pg

Kenneth R. Warlick

Director

Office of Special Education Programs

Enclosures: (1) OMB Circular A-87

> \(2\) 34 C.F.R. Part 80
>
> \(3\) 1999 IDEA regulations
>
> \(4\) January 12, 1993 OSEP Memorandum

cc: Ms. Deborah Barnett, Director of Special Education

> South Dakota Department of Education & Cultural Affairs DECA
>
> Dr. Angelita Felix, Bureau of Indian Affairs
>
> Mr. David Plume, Director,
>
> Oglala Sioux Tribe Early Intervention and Special Education Program