[Purpose of Guidance]{.underline}

The Office of Special Education Programs issues this guidance to provide
States with information regarding the use of funds provided under Part B
of the Individuals with Disabilities Education Act by local educational
agencies (LEAs) to develop and implement coordinated early intervening
services (CEIS) for students who are currently not identified as needing
special education.

This CEIS guidance represents the Department's current thinking on this
topic. It does not create or confer any rights for or on any person.
This guidance does not impose any requirements beyond those included
under applicable laws and regulations.

If you are interested in commenting on this guidance, please email your
comments to <OSERSguidancecomments@ed.gov> and include CEIS in the
subject of your email or write us at the following address: Patricia
Guard, U.S. Department of Education, Potomac Center Plaza, 550 12^th^
Street, SW, room 4108, Washington, DC 20202.

**[MEMORANDUM]{.underline}**

TO: Chief State School Officers

State Directors of Special Education

FROM: William W. Knudsen

Acting Director

Office of Special Education Programs

SUBJECT: Coordinated Early Intervening Services (CEIS) Under

Part B of the Individuals with Disabilities Education Act (IDEA)

The Individuals with Disabilities Education Improvement Act amended the
IDEA to allow, and sometimes require, local educational agencies (LEAs)
to use funds provided under Part B of the IDEA for CEIS. This new
provision, which is found in section 613(f) of the IDEA (20 U.S.C.
§1413(f)) and the regulations in 34 CFR §300.226 permit LEAs to use Part
B funds to develop and provide CEIS for students who are currently not
identified as needing special education. The rationale for using IDEA
funds for CEIS is based on research showing that the earlier a child's
learning problems or difficulties are identified, the more quickly and
effectively the problems and difficulties can be addressed and the
greater the chances that the child's problems will be ameliorated or
decreased in severity. Conversely, the longer a child goes without
assistance, the longer the remediation time and the more intense and
costly services might be.

From the perspective of the interests of the child, and for
administrative, fiscal, and instructional reasons, providing CEIS is a
sound policy. As the Department stated in the [Analysis of Comments and
Changes]{.underline} section in the final IDEA Part B regulations,
published on August 14, 2006, allowing schools to use some Part B funds
for CEIS has the potential to benefit both special education and general
education. CEIS can benefit general education by reducing academic and
behavioral problems in the general education environment. CEIS can also
benefit special education by ensuring that students are appropriately
referred to special education, which would reduce referrals for special
education and related services for needs that could have been addressed
with relatively simple general education interventions. (71
[FR]{.underline} 46540, 46626-46627 (Aug. 14, 2006)).

The IDEA and its implementing regulations permit LEAs to use not more
than 15 percent of the amount the LEA receives under Part B of the IDEA,
less any amount reduced by the LEA pursuant to 34 CFR §300.205
(adjustment to local fiscal efforts), to develop and implement CEIS. See
34 CFR §300.226. The regulations also specify:

-   how CEIS funds may be spent;

-   on whom CEIS funds may be spent;

-   the reporting requirements for LEAs providing CEIS;

-   the requirement for using CEIS funds by an LEA identified as having
    significant disproportionality based on race or ethnicity; and

-   the relationship of CEIS to maintenance of effort requirements
    (34 CFR §§300.226, 300.646(b) and 300.205(d)).

The Department has received a number of requests to clarify the use of
IDEA funds and other Federal funds for CEIS, including the provision in
34 CFR §300.646 that requires an LEA to reserve the maximum amount of
funds available for comprehensive CEIS if there is significant
disproportionality based on race or ethnicity with respect to the
identification of children with disabilities; the identification of
children in specific disability categories; the placement of children
with disabilities in particular educational settings; or the incidence,
duration, and type of disciplinary actions, including suspensions and
expulsions.

The purpose of this memorandum is to provide guidance on CEIS, including
the use of CEIS funds by LEAs identified as having significant
disproportionality based on race or ethnicity, and on the relationship
of CEIS to response to intervention (RTI). In addition to this guidance,
the Department has available on its Web site,
[IDEA.ed.gov](http://idea.ed.gov/), several resources that might be of
assistance to States and LEAs in implementing CEIS, including a topic
brief, a video clip, questions and answers, and a professional
development module created and disseminated in cooperation with the
National Dissemination Center for Children with Disabilities funded by
the Office of Special Education Programs (OSEP).

# Coordinated Early Intervening Services (CEIS)

## 1. What are CEIS?

CEIS are services provided to students in kindergarten through grade 12
(with a particular emphasis on students in kindergarten through grade
three) who are not currently identified as needing special education or
related services, but who need additional academic and behavioral
supports to succeed in a general education environment. The IDEA (20
U.S.C. §1413(f)(2)) and its regulations (34 CFR §300.226(b)) identify
the activities that may be included as CEIS: (1) professional
development for teachers and other school staff to enable such personnel
to deliver scientifically based academic and behavioral interventions,
including scientifically based literacy instruction, and, where
appropriate, instruction on the use of adaptive and instructional
software; and (2) providing educational and behavioral evaluations,
services, and supports, including scientifically based literacy
instruction.

For example, an LEA might use CEIS to provide behavioral interventions
to nondisabled students who receive a certain number of disciplinary
office referrals, perhaps as a part of a Positive Behavioral
Interventions and Support (PBIS) initiative. CEIS also might be used to
help fund reading or math specialists to work with nondisabled students
who have not reached grade-level proficiency in those subjects, or to
fund after-school tutoring for nondisabled students who score below
"basic" on Statewide assessments.

Section 613(f)(5) of the IDEA also states that CEIS funds may be used to
carry out services aligned with activities funded by and carried out
under the Elementary and Secondary Education Act of 1965, as amended
(ESEA), if IDEA funds are used to supplement, and not supplant, funds
made available under the ESEA for those activities. Thus, if the IDEA
funds do not supplant ESEA funds, they may be used to supplement school
improvement activities conducted under other programs, such as Titles I
or III, that are being implemented in an LEA. For more information on
the supplement not supplant requirements, please see Question 24.

## 2. Who may receive CEIS?

Section 613(f)(1) of the IDEA permits LEAs to use IDEA funds for CEIS
for students in kindergarten through grade 12 (with a particular
emphasis on students in kindergarten through grade three) 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. See also 34 CFR §300.226(a). Children who
are not yet in kindergarten may not receive CEIS. The preamble to the
IDEA Part B regulations clarifies that students who received special
education in the past, but are not currently receiving special
education, are eligible to receive CEIS. (71 [FR]{.underline} 46540,
46626 (Aug.14, 2006)).

An LEA determines which students need additional support. For example,
an LEA might consider factors such as performance on reading or math
assessments, disciplinary referrals, or suspension and expulsions. If an
LEA chooses to use CEIS funds to support school-wide interventions,[^1]
it must be able to provide documentation that CEIS funds were used to
provide services only to students in need of additional support and that
other funds were used to fund the school-wide intervention for special
education students and students who do not need additional support.

## 3. When is provision of CEIS required?

Under 34 CFR §300.646(b)(2), if a State identifies significant
disproportionality based on race or ethnicity in an LEA with respect to
the identification of children as children with disabilities, the
identification of children in specific disability categories, the
placement of children with disabilities in particular educational
settings, or the taking of disciplinary actions, the LEA must use the
maximum amount (15 percent) of funds allowable for comprehensive CEIS
for children in the LEA, particularly, but not exclusively, for children
in those groups that were "significantly overidentified."

## 4. May an LEA limit comprehensive CEIS solely to members of the racial or ethnic group for which significant disproportionality was identified?

No. The requirement in 34 CFR §300.646(b)(2) is to provide comprehensive
CEIS to serve "children in the LEA, particularly, but not exclusively,
children in those groups that were significantly overidentified." For
example, assume an LEA's data show significant disproportionality in the
identification of African-American students as children with
disabilities and that the majority of these students are identified in
4^th^ and 5^th^ grades in six of the LEA's 15 elementary schools. In
this case, one appropriate way an LEA could implement CEIS would be to
direct CEIS funds to all nondisabled 3^rd^ and 4^th^ grade children in
need of additional academic or behavioral support in those six schools.
It would not be appropriate, however, for the LEA to limit eligibility
for CEIS only to nondisabled 3^rd^ and 4^th^ grade African-American
students in those schools who were in need of additional academic or
behavioral support. In this example, the services would be provided to
3^rd^ and 4^th^ grade students in order to intervene prior to the grade
when significant disproportionality was identified.

## 5. How may an LEA use CEIS funds for professional development?

CEIS funds may be used to provide professional development to all
personnel who are responsible for students who need additional academic
and behavioral supports to succeed in a general education environment,
but who have not been identified as needing special education. Under
limited circumstances personnel who are solely responsible for students
receiving special education services or students who do not need
additional support may participate in professional development funded
with CEIS funds. These personnel may participate so long as the cost of
the professional development does not increase, the quality of the
professional development does not decrease, and including those
personnel would not exclude other personnel who are responsible for
students who need additional support but have not been identified as
needing special education.

## 6. What are the reporting requirements for CEIS?

The regulations require, in 34 CFR §300.226(d), each LEA that implements
CEIS to report to the State on the number of children who received CEIS
and the number of those children who subsequently received special
education and related services under Part B during the preceding
two-year period (i.e., the two years after the child has received CEIS).
(71 [FR]{.underline} 46540, 46628 (Aug. 14, 2006)). States and LEAs must
maintain these records for audit and monitoring purposes but are not
required to report these data to the Department unless requested to do
so.

## 7. How should an LEA count and track students who received CEIS when funds are used for professional development or a school-wide intervention initiative? 

To ensure consistency across LEAs in a State, each State should develop
a method for its LEAs to count and track students who are served by
personnel who participated in professional development activities
supported with CEIS funds. It would be appropriate for an LEA to count,
and subsequently track for two years, the number of students in need of
additional support who received instruction from personnel who
participated in the professional development program. It would not be
appropriate to count every student who was taught by these personnel if
some of the students were not in need of additional support or were
receiving special education services. An LEA should only count the
students and the personnel who participated in the professional
development program in the year(s) of or the year(s) immediately after
the training, rather than counting the students and those personnel each
year after the training. A similar method might be used to count
students who benefit from a school-wide intervention initiative
supported with CEIS funds. Students who meet the LEA's criteria of being
in need of additional support and participate in the initiative should
be counted as receiving CEIS in the year(s) of or the year(s)
immediately following the initiative and tracked for the following two
years. Students who participate in an initiative for more than one year
should be counted each year they participate.

## 8. How should an LEA count and track students who received CEIS when funds are used to provide behavioral and educational evaluations? 

LEAs may use CEIS funds to provide behavioral and educational
evaluations to determine the supports that are needed by students to
succeed in a general education environment. However, funds may not be
used for evaluations that are intended for use in determining
eligibility for special education and related services. Students who are
evaluated to determine the supports necessary for success in a general
education environment should be counted as receiving CEIS in the year of
or the year immediately following the evaluation and tracked for the
following two years.

# CEIS and Response to Intervention (RTI) 

## 9. What is RTI?

There are a number of RTI frameworks, and while the Department does not
endorse a particular RTI framework, several core characteristics tend to
be present in RTI. These characteristics are: (1) high-quality,
evidence-based instruction in general education settings; (2) screening
of all students for academic and behavioral problems; (3) two or more
levels (sometimes referred to as "tiers") of instruction that are
progressively more intense and based on the student's response to
instruction; and (4) continuous monitoring of student performance.

## 10. How may CEIS funds be used to implement RTI?

CEIS funds may be used to support RTI as long as the CEIS funds are used
for services to nondisabled students in need of additional academic or
behavioral support and supplement, not supplant, other funds used to
implement RTI. For further information on the supplement not supplant
requirements for CEIS, please see Question 24. LEAs must ensure that
CEIS funds are used to provide services only to students who need
additional academic and behavioral support, and not to students who
currently receive special education and related services. See 34 CFR
§300.226(a).

For example, one RTI framework includes a three-level continuum of
instructional support. In this framework, tier one applies to all
students in a general education setting. It would not be appropriate to
use CEIS funds for tier one activities that support these students
because these activities are designed to provide high-quality
instruction to the entire class or school and not principally intended
to address the needs of students who are struggling. Tier two activities
provide specialized small group instruction for students determined to
be at risk for academic and behavioral problems. It would be appropriate
to use CEIS funds to support these tier two activities for at-risk,
general education students. If students who are receiving special
education and related services participate in the small group
instruction, it would not be appropriate for CEIS funds to be used for
these students as CEIS may not be provided to students that are
currently identified as needing special education or related services.
Tier three includes specialized individualized instructional or
behavioral support for students with intensive needs. As in the case of
tier two activities, CEIS funds could be used for activities that
support general education students at risk for academic and behavioral
problems, but could not be used for students who are receiving special
education or related services.

# CEIS and Significant Disproportionality 

## 11. What are the requirements for determining significant disproportionality and the use of IDEA funds for comprehensive CEIS?

Section 618(d) of the IDEA and the implementing regulations in 34 CFR
§300.646 require States to collect and examine data to determine if
significant disproportionality based on race or ethnicity is occurring
in States and LEAs with respect to the following: (1) the identification
of children as children with disabilities; (2) the identification of
children as children with a particular disability; (3) the placement of
children with disabilities in particular educational settings; and (4)
the incidence, duration, and type of disciplinary actions, including
suspensions and expulsions. This requirement is different from the
requirement to determine disproportionate representation based on
inappropriate identification that is reported in the IDEA State
Performance Plan (SPP) and Annual Performance Reports (APR) in
Indicators 9 and 10.[^2] One important difference is that the
determination of significant disproportionality does not include a
review to determine whether the disproportionality is the result of
inappropriate identification, as does the determination of
disproportionate representation as the result of inappropriate
identification. In the case of a determination of significant
disproportionality, a State must require any LEA identified as having
significant disproportionality in any of the four above-mentioned
analysis categories to reserve the maximum amount of funds for
comprehensive CEIS.

## 12. How may States define significant disproportionality and disproportionate representation?

OSEP's April 24, 2007 memorandum, [Disproportionality of Racial and
Ethnic Groups in Special Education,]{.underline}[^3] provides important
guidance on the disproportionate representation requirements in 34 CFR
§300.600(d)(3) and the significant disproportionality requirements in 34
CFR §300.646. States are required to provide a definition of
"disproportionate representation that is the result of inappropriate
identification" in the SPP pursuant to 34 CFR §300.600(d)(3).

States have a separate obligation, under 34 CFR §300.646, to examine
data to determine whether significant disproportionality based on race
or ethnicity is occurring, as described above. While it is permissible
for States to use the same or similar definitions for both
"disproportionate representation" and "significant disproportionality,"
States' definitions are usually different. For example, one possible way
to set different, but coordinated, definitions is through a multi-level
approach in which one level could be any numerical disproportionality;
another level could be numerical disproportionality defined by the State
to be disproportionate representation, which triggers a review to
determine whether the disproportionate representation is the result of
inappropriate identification; and another level could be numerical
disproportionality that the State defines as significant
disproportionality, which triggers the requirement to set aside the
maximum amount for comprehensive CEIS.

It is important to consider some distinct differences between the
requirements of 34 CFR §§300.600(d)(3) and 300.646. For example, under
34 CFR §300.600(d)(3), SPP Indicators 9 and 10 only require States to
look at identification data, including by disability category, and are
only concerned with disproportionality that is the result of
inappropriate identification. In contrast, for purposes of determining
whether an LEA must set aside 15 percent of its IDEA funds for
comprehensive CEIS under 34 CFR §300.646(b)(2), States must examine the
numerical data in four analysis categories \-- identification of
children with disabilities, identification of children with disabilities
in a particular impairment category, placement of children in particular
educational settings, and the taking of disciplinary actions. Further,
34 CFR §300.646 requires the identification of all significant
disproportionality, whether or not it is the result of inappropriate
identification.

## 13. Should States consider both overrepresentation and underrepresentation of racial and ethnic minorities when determining significant disproportionality under 34 CFR §300.646? 

No. For purposes of §300.646, it is acceptable for States to consider
only overrepresentation by race or ethnicity, rather than
underrepresentation by race or ethnicity. During its deliberations on
section 618(d) of the 2004 amendments to the IDEA, Congress expressed
concern with the overrepresentation of racial and ethnic minorities in
the identification, placement, or discipline of children with
disabilities. The House Committee Report, H.R. Rep. No. 108-77, at 122
(2003), stated, "\...the Committee's desire to see the problems of
overidentification of minority children strongly addressed\...."
Additionally, in drafting the language in section 618(d)(1) of the Act,
Congress expressly provided that States must require LEAs identified
with significant disproportionality to reserve the maximum amount of
funds under section 613(f) to provide comprehensive CEIS to children in
the LEA, "particularly, but not exclusively, children in those groups
that were significantly overidentified."

Based on Congress' expressed desire to address the issue of
overrepresentation, States' resources may be better spent (1) collecting
and analyzing data only on significant disproportionality that
constitutes overrepresentation based on race or ethnicity in the
identification, placement, or discipline of children with disabilities,
and (2) ensuring that where such overrepresentation exists, the
policies, practices, and procedures are reviewed and revised to comply
with the Act, and LEAs use 15 percent of their Part B funds to provide
comprehensive CEIS.

## 14. What must States consider in the analysis of significant disproportionality in the identification and placement of children with disabilities required in 34 CFR §300.646? 

In each of its LEAs, a State must examine data to determine if
significant disproportionality based on race or ethnicity exists in each
of the four analysis categories required by 34 CFR §300.646. When
examining data to determine if significant disproportionality exists
with respect to the identification of children with particular
impairments, it is acceptable for a State to examine the data with
regard to children with impairments in only the following six disability
categories: specific learning disabilities, mental retardation, speech
or language impairments, other health impairments, autism, and emotional
disturbance. Because the remaining disability categories typically have
very small numbers of children, the Department does not deem
disproportionality in the number of children with these disabilities to
be significant. However, if a State has identified a problem or has
reason to believe that there are issues with other disability categories
(i.e., through written complaints, due process filings, etc.), then the
State should explore the problems with those categories.

Additionally, with regard to data on placement of children with
disabilities in particular educational settings, a State, using the data
it collects for reporting under section 618 of the IDEA must, at a
minimum, examine data for three of the section 618 reporting categories:
children who received educational and related services in the regular
class no more than 79 percent of the day and no less than 40 percent of
the day; children who received special education and related services in
the regular class for less than 40 percent of the day; and children who
received special education and related services in separate schools and
residential facilities. A State is not required to examine data for
children who received special education and related services in
homebound or hospital settings, correctional facilities, or in private
schools (as a result of parental placement of the child in a private
school) because those numbers are typically very small and an LEA
generally has little, if any, control over these placements.
Additionally, a State is not required to examine data for children who
received special education and related services in the regular class for
more than 79 percent of the day because the IDEA requires children with
disabilities to be placed in the least restrictive environment and,
therefore, presumes that placement in the regular classroom is the
preferred educational setting.

## 15. What must States consider in the collection and examination of disciplinary data in 34 CFR §300.646?

The regulations in 34 CFR §300.646(a)(3) require States to annually
collect and examine data to determine if significant disproportionality
based on race or ethnicity is occurring with respect to the incidence,
duration, and type of disciplinary action, including suspensions and
expulsions. We interpret the term "incidence" to refer to the number of
times children with disabilities ages 3 through 21 were subject to
disciplinary actions. We interpret the term "duration" to refer to the
length of suspensions or expulsions. The type of disciplinary action
refers to, at a minimum, data on both in-school and out-of-school
suspensions and expulsions, but could also include other disciplinary
actions (e.g., exclusion from extracurricular activities). In order to
determine if significant disproportionality exists for discipline, a
State must consider all three areas (incidence, duration, and
disciplinary actions) when examining its data. For example, a State
could meet this requirement by determining whether significant
disproportionality based on race or ethnicity is occurring in: the
number of out-of-school suspensions of 10 days or less; the number of
out-of-school suspensions (including expulsions) of greater than 10
days; the number of in-school suspensions of 10 days or less; the number
of in-school suspensions of greater than 10 days; and the total number
of disciplinary removals.

## 16. What funds must be reserved by the LEA for comprehensive CEIS if a State determines significant disproportionality? 

A State must determine significant disproportionality annually and
require any LEA that is found to have significant disproportionality
based on race or ethnicity to reserve the maximum amount of funds under
section 613(f) of the IDEA (15 percent) for comprehensive CEIS either
from the funds awarded following the date on which significant
disproportionality was determined or from funds awarded from the
appropriation for a prior Federal fiscal year (FFY).

The following examples illustrate how funds could be reserved. (Note:
The Department expects to begin making awards from FFY 2009 funds on
July 1, 2009. FFY 2009 funds, which will begin to become available on
July 1, 2009, will be available for obligation at the State and LEA
levels until September 30, 2011.)

> a\. The State uses data on discipline collected for school year
> 2007-08, and which is reported in November 2008, to make a
> determination in February 2009 (prior to when FFY 2009 funds begin to
> become available on July 1, 2009) that an LEA must set aside funds for
> comprehensive CEIS. The LEA has three options. The LEA may set aside:
> (1) 15 percent of the funds that it receives from the FFY 2009
> appropriation (available for obligation from July 1, 2009 through
> September 30, 2011); (2)15 percent of the funds that it received from
> the FFY 2008 appropriation (available for obligation from July 1, 2008
> through September 30, 2010); *or* (3) 15 percent of the funds that it
> received from the FFY 2007 appropriation (available for obligation
> from July 1, 2007 through September 30, 2009).
>
> b\. The State uses data on enrollment or placement collected as of
> some time between October 1 and December 1, 2008, and which is
> reported in February 2009, to make a determination in August 2009
> (after FFY 2009 funds begin to become available on July 1, 2009) that
> an LEA must set aside funds for comprehensive CEIS. In this case, the
> LEA has four options: the three options described above plus one
> additional option. Because the determination was not made until
> August, after the funds from the FFY 2009 appropriation have been
> awarded, the LEA may set aside 15 percent of the funds that it
> receives from the FFY 2010 appropriation (available for obligation
> from July 1, 2010 through September 30, 2012).

## 17. May multiple years of data be used to determine significant disproportionality?

A State must determine significant disproportionality annually. It is
appropriate for a State's determination of significant
disproportionality to be based on multiple years of data. While a State
may aggregate previous years' data or look at trend data, the analysis
must include data for the most recent fiscal year as described in
Question 16.

## 18. May a State calculate significant disproportionality differently for the four analysis categories?

It is permissible for a State to use different calculation methods to
determine significant disproportionality in the four analysis categories
so long as the State can justify the calculation methods for each of the
analysis categories and demonstrate that the methods are statistically
sound. We recognize that there may be small numbers of students counted
in some of the analysis categories, which might impact the reliability
and validity of a calculation method. In such cases, a State might need
to use a method of identifying significant disproportionality that is
different from the method used for another analysis category. For
example, a State might choose to use a "risk-ratio formula" to identify
significant disproportionality in placement data and a "composition
index" to identify significant disproportionality in identification
data. In addition, a State may set its risk ratio or composition index
at different points for the four analysis categories. For example, a
State might decide to use a risk ratio for placement data that is higher
than its threshold for discipline data as long as these differences can
be justified. The Department encourages States to use the guidance
provided by the Department on methods for calculating
disproportionality. This guidance is found at:
[http://www.ideadata.org/docs/Disproportionality%20Technical%20Assistance%20Guide.pdf](http://www.ideadata.org/docs/Disproportionality Technical Assistance Guide.pdf).

Additionally, if data appear not to be representative in a district that
provides services for students with certain disabilities who come from
several surrounding districts, it would be appropriate when calculating
significant disproportionality to count those students in the "sending
district" (i.e., the district that is responsible for ensuring that the
student's individualized education program (IEP) is implemented) and not
in the district that is providing services.

## 19. May a State change its definition of significant disproportionality over time?

Yes. There are circumstances in which it may be appropriate for a State
to modify its definition of significant disproportionality over time.
For example, a State may make its definition broader as its LEAs improve
in the areas of analysis, in order to identify more disproportionality
than in previous years. If a State chooses to modify its definition of
significant disproportionality for the analyses required under 34 CFR
§300.646, the State is not required to recalculate data from previous
years based on the revised definition.

## 20. Should States report on significant disproportionality in the SPP and APR?

States are not required to report on significant disproportionality and
CEIS in the SPP/APR unless required by OSEP to do so because of
previously identified noncompliance. As described above, the analysis of
data to determine significant disproportionality required in 34 CFR
§300.646 and the reservation of funds for comprehensive CEIS are
separate from the requirement in 34 CFR §300.600(d)(3), which is the
basis for Indicators 9 and 10 in the SPP and APR.

# Some Fiscal Considerations when Implementing CEIS

## 21. What amount of IDEA funds may an LEA use for CEIS? 

It is important to consider that many of the following fiscal
considerations relating to CEIS only apply when an LEA is required to
reserve funds for comprehensive CEIS following the identification of
significant disproportionality, pursuant to 34 CFR §300.646(b)(2). If a
State identifies significant disproportionality in an LEA, the LEA must
reserve the maximum amount of funds for comprehensive CEIS. The funds
must be used during the period of their availability for obligation and
must be used for comprehensive CEIS regardless of whether the
significant disproportionality is resolved during the time that the
funds are available. If significant disproportionality is not identified
and an LEA chooses to use funds for CEIS, the LEA may use up to the
maximum amount allowed for CEIS (15 percent) and may reallocate any
unspent funds during the time that the funds are available for
obligation.

## 22. Should the 15 percent be calculated prior to reductions based on other IDEA requirements?

Funds awarded to an LEA under both sections 611 and 619 of the IDEA must
be included when calculating the 15 percent. An LEA may not reduce the
amount it uses for this calculation by any other amount required by the
IDEA. For example, an LEA may not deduct funds for equitable services
for students parentally-placed in private schools before calculating the
15 percent. An LEA that is required to use funds for comprehensive CEIS
because of significant disproportionality must use 15 percent of the
total Part B funds awarded to the LEA. An LEA that is not identified as
having significant disproportionality but chooses to use Part B funds
for CEIS may use up to 15 percent of the total amount, less any funds
reduced by the LEA pursuant to 34 CFR §300.205. See 34 CFR §300.226(a).

## 23. How does an LEA's use of IDEA funds for CEIS affect its maintenance of effort obligation under IDEA?

If an LEA is required or chooses to use part of its Part B funds for
CEIS, it must consider the effect that the decrease in the available
Part B funds might have on the LEA's maintenance of effort obligation.
States and LEAs should review the requirements in 34 CFR §§300.205(d)
and 300.226(a), and the examples provided in Appendix D to the Part B
regulations, to better understand how CEIS and maintenance of effort
calculations might affect one another. If an LEA uses additional local
funds, or State and local funds, for special education and related
services for children with disabilities in place of the Part B funds
that are being used to provide CEIS to children who have not been
identified as children with disabilities, the higher level of local, or
State and local, expenditures becomes the LEA's new maintenance of
effort base for the subsequent year.

## 24. What are the supplement not supplant requirements for CEIS funds?

The general non-supplant requirement for IDEA funds in 34 CFR
§300.202(a)(3) states that funds provided to LEAs under Part B of the
IDEA must be used to supplement State, local, and other Federal funds
and not to supplant those funds. This requirement applies to all Part B
funds including any used for CEIS. In addition, 34 CFR §300.226(e)
states that CEIS funds may be used to carry out CEIS aligned with
activities funded 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 using CEIS funds. The Department
will presume that an LEA is in violation of the IDEA's supplement not
supplant provisions if it uses IDEA funds in one of the following ways:
(1) to provide services that are otherwise required by Federal, State or
local law; or (2) to provide services that were paid for with other
funds in a prior year, including, if the IDEA funds are used for CEIS
activities coordinated with activities funded under the ESEA, and the
IDEA funds are used to provide services that were paid for with ESEA
funds in the prior year. CEIS may not include services that were
provided with other funds in a prior year, including services that were
paid with ESEA funds. An LEA might be able to rebut these presumptions
through the presentation of evidence that, even without CEIS funds, the
other funds would not have been used in the current year for the
activities now paid for with CEIS funds. Additional supplement not
supplant provisions apply to Federal funds provided under Titles I and
III of the ESEA.[^4] If an LEA chooses to use CEIS funds for activities
aligned with activities funded under Titles I and III, it must meet
those requirements.

# Conclusion

The Department recognizes the complexities of implementing the
requirements related to CEIS. We encourage States to utilize the
technical assistance resources developed by the Department and available
at [IDEA.ed.gov](http://idea.ed.gov/). If you have further questions
about CEIS and RTI or CEIS and significant disproportionality, please
contact your OSEP Part B State contact. As noted above, we welcome your
comments on this guidance.

[^1]: School-wide interventions, as used in this memorandum, are
    interventions that are implemented throughout a school. The
    reference to school-wide interventions is not a reference to
    school-wide programs under section 1114 of the ESEA.

[^2]: More information on Indicators 9 and 10 of the SPP and APR can be
    found in the SPP and APR forms, available online at:
    <http://www.ed.gov/policy/speced/guid/idea/monitor/index.html>.

[^3]: This memorandum is available online at:
    [http://www.rrfcnetwork.org/images/stories/FRC/spp_mat/2007_October/dr%20memorandum%20final%204-24%20signed.doc](http://www.rrfcnetwork.org/images/stories/FRC/spp_mat/2007_October/dr memorandum final 4-24 signed.doc).

[^4]: See section 1120A of Title I and sections 3111 and 3115(g) of
    Title III regarding the supplement not supplant provisions.