Dated August 24, 2004

Leigh M. Manasevit

Attorney at Law

Brustein and Manasevit

3105 South Street, NW

Washington, DC 20007

Dear Mr. Manasevit:

This is in response to your June 30, 2004 letter to me and Mr. Raymond
J. Simon, Assistant Secretary, Office of Elementary and Secondary
Education. You ask for guidance as to whether the "local educational
agency (LEA) schoolwide cap, established by 20 USC §1413(a)(2)(D) of the
Individuals with Disabilities Education Act (IDEA), \[applies\] to
schoolwide programs that elect not to combine Part B funds in their
schoolwide plan."

Consistent with 20 USC §1413(a)(2)(D) of the IDEA and the final
implementing regulation at 34 CFR §300.234(a), and 34 CFR §200.29(c)(3)
of the regulations implementing Title I of the Elementary and Secondary
Education Act (ESEA), a school that operates as a schoolwide program may
consolidate funds received under Part B of the IDEA. However, under 34
CFR §300.234(a), the amount of funds consolidated may not exceed the
amount received by the LEA under Part B of the IDEA 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 schoolwide program.

A school also may consolidate funds it receives for students with
disabilities under section 8003(d) of Title VIII of the ESEA, which
provides additional funds to school districts that educate federally
connected children who are eligible for services under the IDEA. A
school that consolidates funds under Part B of the IDEA or section
8003(d) of the ESEA may use those funds in its schoolwide program for
any activities under its schoolwide program plan but must comply with
all other requirements of Part B of the IDEA, to the same extent it
would if it did not consolidate funds under Part B of the IDEA or
section 8003(d) of the ESEA in the schoolwide program, including
providing services to students with disabilities in accordance with a
properly developed individualized education program and ensuring that
students with disabilities and their parents are afforded all the rights
and services guaranteed to children with disabilities under the IDEA.

Unlike other Federal education programs whose funds are combined in a
schoolwide program, the IDEA only allows flexibility in the use of
funds. All other requirements of the IDEA must be met for children with
disabilities in schoolwide program schools. Given the unique special
education and related services needs of students with disabilities, it
is conceivable that additional Part B funds, beyond those consolidated
pursuant to 20 USC §1413(a)(2)(D), may be necessary to ensure that all
students with disabilities in a schoolwide program school receive a free
appropriate public education. There is nothing in the IDEA or its final
implementing regulations that would preclude an LEA from using Part B
funds, [not]{.underline} consolidated with other funds to carryout a
schoolwide program plan under section 1114 of the ESEA, to meet the
special education and related service needs of individual students with
disabilities in a schoolwide program school. In addition, Part B funds
used in a schoolwide program school that are [not]{.underline} used to
carry out the schoolwide program plan would not be subject to the cap on
the amount of Part B funds consolidated under 20 USC §1413(a)(2)(D).
However, any Part B funds not consolidated with other funds to carry out
the schoolwide program must be expended consistent with the IDEA and
must be accounted for separately.

I hope you find this explanation helpful. If you would like further
assistance, please contact Dale King at (202) 245-7405 or Dr. JoLeta
Reynolds at 202-245-7459 (press 3) and ask to be transferred to Dr.
Reynolds.

> Sincerely,
>
> /s/

Troy R. Justesen, Ed.D.

> Acting Deputy Assistant Secretary
>
> Office of Special Education
>
> and Rehabilitative Services

cc: Raymond Simon

Assistant Secretary