Title 34—Education--Volume 1
PART 299—GENERAL PROVISIONS
§ 299.1   What are the purpose and scope of the regulations in this part?
(a) This part establishes uniform administrative rules for programs in titles I through VII of the Elementary and Secondary Education Act of 1965, as amended (ESEA). As indicated in particular sections of this part, certain provisions apply only to a specific group of programs.
(b) If an ESEA program does not have implementing regulations, the Secretary implements the program under the authorizing statute and, to the extent applicable, title VIII of the ESEA, the General Education Provisions Act, the regulations in this part, EDGAR (34 CFR parts 75 through 99), and 2 CFR parts 180, as adopted at 2 CFR part 3485, and 200, as adopted at 2 CFR part 3474, that are not inconsistent with specific statutory provisions of the ESEA.
§ 299.2   What general administrative regulations apply to ESEA programs?
Title 2 of the CFR, part 200, as adopted at 2 CFR part 3474, applies to all ESEA programs except for title VII programs (Impact Aid) (in addition to any other specific implementing regulations).
34 CFR 222.19 indicates which EDGAR provisions apply to title VII programs (Impact Aid).
§ 299.4   What requirements apply to the consolidation of State and local administrative funds?
An SEA may adopt and use its own reasonable standards in determining whether—
(a) The majority of its resources for administrative purposes comes from non-Federal sources to permit the consolidation of State administrative funds in accordance with section 8201 of the ESEA; and
(b) To approve an LEA's consolidation of its administrative funds in accordance with section 8203 of the ESEA.
§ 299.5   What maintenance of effort requirements apply to ESEA programs?
(a) General. An LEA receiving funds under an applicable program listed in paragraph (b) of this section may receive its full allocation of funds only if the SEA finds that either the combined fiscal effort per student or the aggregate expenditures of State and local funds with respect to the provision of free public education in the LEA for the preceding fiscal year was not less than 90 percent of the combined fiscal effort per student or the aggregate expenditures for the second preceding fiscal year.
(b) Applicable programs. This subpart is applicable to the following programs:
(1) Part A of title I (Improving Basic Programs Operated by Local Educational Agencies).
(2) Part D of title I (Prevention and Intervention Programs for Children and Youth Who Are Neglected, Delinquent, or At Risk).
(3) Part A of title II (Supporting Effective Instruction).
(4) Part A, subpart 1 of title III (English Language Acquisition, Language Enhancement, and Academic Achievement), except for section 3112.
(5) Part A of title IV (Student Support and Academic Enrichment Grants).
(6) Part B of title IV (21st Century Community Learning Centers).
(7) Part B, subpart 2 of title V (Rural and Low-Income School Program).
(8) Part A, subpart 1 of title VI (Indian Education Formula Grants to Local Educational Agencies).
(c) Meaning of “preceding fiscal year”. For purposes of determining if the requirement of paragraph (a) of this section is met, the “preceding fiscal year” means the Federal fiscal year, or the 12-month fiscal period most commonly used in a State for official reporting purposes, prior to the beginning of the Federal fiscal year in which funds are available for obligation by the Department.
(1) Example. For fiscal year 2018 funds that are first made available on July 1, 2018, if a State is using the Federal fiscal year, the “preceding fiscal year” is Federal fiscal year 2017 (which began on October 1, 2016 and ended September 30, 2017) and the “second preceding fiscal year” is Federal fiscal year 2016 (which began on October 1, 2015). If a State is using a fiscal year that begins on July 1, 2018, the “preceding fiscal year” is the 12-month period ending on June 30, 2017, and the “second preceding fiscal year” is the period ending on June 30, 2016.
(2) [Reserved]
(d) Expenditures. (1) In determining an LEA's compliance with paragraph (a) of this section, the SEA shall consider only the LEA's expenditures from State and local funds for free public education. These include expenditures for administration, instruction, attendance and health services, pupil transportation services, operation and maintenance of plant, fixed charges, and net expenditures to cover deficits for food services and student body activities.
(2) The SEA may not consider the following expenditures in determining an LEA's compliance with the requirements in paragraph (a) of this section:
(i) Any expenditures for community services, capital outlay, debt service or supplemental expenses made as a result of a Presidentially declared disaster.
(ii) Any expenditures made from funds provided by the Federal Government.
§ 299.6   What are the responsibilities of a recipient of funds for providing services to children and teachers in private schools?
(a) General. An agency, consortium, or entity receiving funds under an applicable program listed in paragraph (b) of this section, after timely and meaningful consultation with appropriate private school officials (in accordance with the statute), shall provide special educational services or other benefits under this subpart on an equitable basis to eligible children who are enrolled in private elementary and secondary schools, and to their teachers and other educational personnel.
(b) Applicable programs. This subpart is applicable to the following programs:
(1) Part C of title I (Migrant Education).
(2) Part A of title II (Supporting Effective Instruction).
(3) Part A of title III (English Acquisition, Language Enhancement, and Academic Achievement).
(4) Part A of title IV (Student Support and Academic Enrichment Grants).
(5) Part B of title IV (21st Century Community Learning Centers).
(6) Section 4631 (Project SERV).
(c) Provisions not applicable. Sections 75.650 and 76.650 through 76.662 of title 34 of the Code of Federal Regulations (participation of students enrolled in private schools) do not apply to programs listed in paragraph (b) of this section.
§ 299.7   What are the requirements for consultation?
(a)(1) In order to have timely and meaningful consultation, an agency, consortium, or entity must—
(i) Consult with appropriate private school officials during the design and development of the agency, consortium, or entity's program for eligible private school children and their teachers and other educational personnel; and
(ii) Consult before the agency, consortium, or entity makes any decision that affects the opportunities of eligible private school children and their teachers and other educational personnel to participate in the applicable program.
(2) Such consultation must continue throughout the implementation and assessment of equitable services.
(b) Both the agency, consortium, or entity and private school officials must have the goal of reaching agreement on how to provide equitable and effective programs for private school children and their teachers and other educational personnel, including, at a minimum, on issues such as—
(1) How the agency, consortium, or entity will identify the needs of eligible private school children and their teachers and other educational personnel;
(2) What services the agency, consortium, or entity will offer to eligible private school children and their teachers and other educational personnel;
(3) How and when the agency, consortium, or entity will make decisions about the delivery of services;
(4) How, where, and by whom the agency, consortium, or entity will provide services to eligible private school children and their teachers and other educational personnel;
(5) How the agency, consortium, or entity will assess the services and use the results of the assessment to improve those services;
(6) Whether the agency, consortium, or entity will provide services directly or through a separate government agency, consortium, entity, or third-party contractor;
(7) The size and scope of the equitable services that the agency, consortium, or entity will provide to eligible private school children and their teachers and other educational personnel, the amount of funds available for those services, and how that amount is determined; and
(8) Whether to provide equitable services to eligible private school children and their teachers and other educational personnel—
(i) On a school-by-school basis;
(ii) By creating a pool or pools of funds with all the funds allocated under the applicable program based on the amount of funding allocated for equitable services to two or more participating private schools served by the same agency, consortium, or entity, provided that all the affected private schools agree to receive services in this way; or
(iii) By creating a pool or pools of funds with all the funds allocated under the applicable program based on the amount of funding allocated for equitable services to two or more participating private schools served across multiple agencies, consortia, or entities, provided that all the affected private schools agree to receive services in this way.
(c)(1) Consultation must include—
(i) A discussion of service delivery mechanisms the agency, consortium, or entity can use to provide equitable services to eligible private school children and their teachers and other educational personnel; and
(ii) A thorough consideration and analysis of the views of private school officials on the provision of services through a contract with a third-party provider.
(2) If the agency, consortium, or entity disagrees with the views of private school officials on the provision of services through a contract, the agency, consortium, or entity must provide in writing to the private school officials the reasons why the agency, consortium, or entity chooses not to use a contractor.
(d)(1) The agency, consortium, or entity must maintain in its records and provide to the SEA a written affirmation, signed by officials of each private school with participating children or appropriate private school representatives, that the required consultation has occurred. The written affirmation must provide the option for private school officials to indicate such officials' belief that timely and meaningful consultation has not occurred or that the program design is not equitable with respect to eligible private school children.
(2) If private school officials do not provide the affirmations within a reasonable period of time, the agency, consortium, or entity must submit to the SEA documentation that the required consultation occurred.
(e) A private school official has the right to complain to the SEA that the agency, consortium, or entity did not—
(1) Engage in timely and meaningful consultation;
(2) Give due consideration to the views of the private school official; or
(3) Make a decision that treats the private school or its students equitably as required by this section.
§ 299.8   Use of Private School Personnel.
A grantee or subgrantee may use program funds to pay for the services of an employee of a private school if:
(a) The employee performs the services outside of his or her regular hours of duty; and
(b) The employee performs the services under public supervision and control.
§ 299.9   What are the factors for determining equitable participation of children and teachers in private schools?
(a) Equal expenditures. (1) Expenditures of funds made by an agency, consortium, or entity under a program listed in § 299.6 (b) for services for eligible private school children and their teachers and other educational personnel must be equal on a per-pupil basis to the amount of funds expended for participating public school children and their teachers and other educational personnel, taking into account the number and educational needs of those children and their teachers and other educational personnel.
(2) Before determining equal expenditures under paragraph (a)(1) of this section, an agency, consortium, or entity shall pay for the reasonable and necessary administrative costs of providing services to public and private school children and their teachers and other educational personnel from the agency's, consortium's, or entity's total allocation of funds under the applicable ESEA program.
(3) An agency, consortium, or entity must obligate funds allocated for educational services and other benefits for eligible private school children in the fiscal year for which the funds are received by the agency, consortium, or entity.
(4) An SEA must provide notice in a timely manner to appropriate private school officials in the State of the allocation of funds for educational services and other benefits that an agency, consortium, or entity has determined are available for eligible private school children and their teachers and other educational personnel.
(b) Services on an equitable basis. (1) The services that an agency, consortium, or entity provides to eligible private school children and their teachers and other educational personnel must also be equitable in comparison to the services and other benefits provided to public school children and their teachers or other educational personnel participating in a program under this subpart.
(2) Services are equitable if the agency's, consortium's, or entity's—
(i) Addresses and assesses the specific needs and educational progress of eligible private school children and their teachers and other educational personnel on a comparable basis to public school children and their teachers and other educational personnel;
(ii) Determines the number of students and their teachers and other educational personnel to be served on an equitable basis;
(iii) Meets the equal expenditure requirements under paragraph (a) of this section; and
(iv) Provides private school children and their teachers and other educational personnel with an opportunity to participate that is equitable to the opportunity and benefits provided to public school children and their teachers and other educational personnel.
(3) The agency, consortium, or entity shall make the final decisions with respect to the services to be provided to eligible private school children and their teachers and the other educational personnel.
(c) If the needs of private school children, their teachers and other educational personnel are different from the needs of children, teachers and other educational personnel in the public schools, the agency, consortium, or entity shall provide program benefits for the private school children, teachers, and other educational personnel that are different from the benefits it provides for the public school children and their teachers and other educational personnel.
§ 299.10   What are the requirements to ensure that funds do not benefit a private school?
(a) An agency, consortium, or entity shall use funds under a program listed in § 299.6(b) to provide services that supplement, and in no case supplant, the level of services that would, in the absence of services provided under that program, be available to participating children and their teachers and other educational personnel in private schools.
(b) An agency, consortium, or entity shall use funds under a program listed in § 299.6(b) to meet the special educational needs of participating children who attend a private school and their teachers and other educational personnel, but may not use those funds for—
(1) The needs of the private school; or
(2) The general needs of children and their teachers and other educational personnel in the private school.
§ 299.11   What are the requirements concerning property, equipment, and supplies for the benefit of private school children and teachers?
(a) A agency, consortium, or entity must keep title to, and exercise continuing administrative control of, all property, equipment, and supplies that the agency, consortium, or entity acquires with funds under a program listed in § 299.6(b) for the benefit of eligible private school children and their teachers and other educational personnel.
(b) The agency, consortium, or entity may place equipment and supplies in a private school for the period of time needed for the program.
(c) The agency, consortium, or entity shall ensure that the equipment and supplies placed in a private school—
(1) Are used only for proper purposes of the program; and
(2) Can be removed from the private school without remodeling the private school facility.
(d) The agency, consortium, or entity must remove equipment and supplies from a private school if—
(1) The equipment and supplies are no longer needed for the purposes of the program; or
(2) Removal is necessary to avoid unauthorized use of the equipment or supplies for other than the purposes of the program.
(e) No funds may be used for repairs, minor remodeling, or construction of private school facilities.
§ 299.12   Ombudsman.
To help ensure equity for eligible private school children, teachers, and other educational personnel, an SEA must direct the ombudsman designated under section 1117 of the ESEA and § 200.68 to monitor and enforce the requirements in §§ 299.6 through 299.11.
§ 299.13   What complaint procedures shall an SEA adopt?
(a) General. An SEA shall adopt written procedures, consistent with State law, for—
(1) Receiving and resolving any complaint from an organization or individual that the SEA or an agency or consortium of agencies is violating a Federal statute or regulation that applies to an applicable program listed in paragraph (b) of this section;
(2) Reviewing an appeal from a decision of an agency or consortium of agencies with respect to a complaint; and
(3) Conducting an independent on-site investigation of a complaint if the SEA determines that an on-site investigation is necessary.
(b) Applicable programs. This subpart is applicable to the following programs:
(1) Part A of title I (Improving Basic Programs Operated by Local Educational Agencies).
(2) Part C of title I (Education of Migratory Children).
(3) Part D of title I (Prevention and Intervention Programs for Children and Youth Who Are Neglected, Delinquent, or At Risk).
(4) Part A of title II (Supporting Effective Instruction).
(5) Part A, subpart 1 of title III (English Language Acquisition, Language Enhancement, and Academic Achievement), except for section 3112.
(6) Part A of title IV (Student Support and Academic Enrichment Grants).
(7) Part B of title IV (21st Century Community Learning Centers).
(8) Part B, subpart 2 of title V (Rural and Low-Income School Program).
(9) Subtitle B of title VII of the McKinney-Vento Homeless Assistance Act, Education for Homeless Children and Youth Program.
§ 299.14   What items are included in the complaint procedures?
An SEA shall include the following in its complaint procedures:
(a)(1) Except as provided in paragraph (a)(2) of this section, a reasonable time limit after the SEA receives a complaint for resolving the complaint in writing, including a provision for carrying out an independent on-site investigation, if necessary.
(2) In matters involving violations of section 1117 or 8501 of the ESEA (participation of private school children), an SEA must resolve, in writing, a complaint within 45 days after receiving the complaint.
(b) An extension of the time limit under paragraph (a)(1) of this section only if exceptional circumstances exist with respect to a particular complaint.
(c)(1) The right for the complainant to request the Secretary to review the final decision of the SEA, at the Secretary's discretion.
(2) In matters involving violations of section 1117 or 8501 of the ESEA (participation of private school children), the Secretary will follow the procedures in section 8503(b) of the ESEA.
(d) A requirement for LEAs to disseminate, free of charge, adequate information about the complaint procedures to parents of students, and appropriate private school officials or representatives.
§ 299.15   How does an organization or individual file a complaint?
An organization or individual may file a written signed complaint with an SEA. The complaint must be in writing and signed by the complainant, and include—
(a) A statement that the SEA or an agency or consortium of agencies has violated a requirement of a Federal statute or regulation that applies to an applicable program; and
(b) The facts on which the statement is based and the specific requirement allegedly violated.
§ 299.16   What must an SEA include in its written resolution of a complaint?
An SEA must include the following in its written resolution of a complaint under an applicable program:
(a) A description of applicable statutory and regulatory requirements.
(b) A description of the procedural history of the complaint.
(c) Findings of fact supported by citation, including page numbers, to supporting documents under paragraph (h) of this section.
(d) Analysis and conclusions regarding the requirements.
(e) Corrective actions, if applicable.
(f) A statement of applicable appeal rights.
(g) A statement regarding the State's determination about whether it will provide services.
(h) All documents the SEA relied on in reaching its decision, paginated consecutively.
§ 299.17   What must a party seeking to appeal an SEA's written resolution of a complaint or failure to resolve a complaint in 45 days include in its appeal request?
(a) A party appealing an SEA's written resolution of a complaint, or failure to resolve a complaint, must include the following in its request within 30 days of either the SEA's resolution or the 45-day time limit:
(1) A clear and concise statement of the parts of the SEA's decision being appealed, if applicable.
(2) The legal and factual basis for the appeal.
(3) A copy of the complaint filed with the SEA.
(4) A copy of the SEA's written resolution of the complaint being appealed, if one is available, including all supporting documentation required under § 299.16(h).
(5) Any supporting documentation not included as part of the SEA's written resolution of the complaint being appealed.
(b) Unless substantiating documentation identified in paragraph (a) of this section is provided to the Department, the appeal is not considered complete. Statutory or regulatory time limits are stayed until the appeal is complete as determined by the Department.
(c) In resolving the appeal, if the Department determines that additional information is necessary, all applicable statutory or regulatory time limits are stayed pending receipt of that information.
§ 299.18   Applicability.
The regulations in this subpart apply to part A of Title I and applicable programs under section 8501(b)(1) of the ESEA under which the Secretary is authorized to waive the requirements for providing services to private school children, teachers or other educational personnel, and families, as applicable, and to implement a bypass.
§ 299.19   Bypass—general.
(a) The Secretary arranges for a bypass if—
(1) An agency, consortium, or entity is prohibited by law from providing for the participation in programs of children enrolled in, or teachers or other educational personnel from, private elementary and secondary schools, on an equitable basis; or
(2) The Secretary determines that the agency, consortium, or entity has substantially failed, or is unwilling, to provide for that participation as required by section 1117 or 8501 of the ESEA, as applicable.
(b) If the Secretary determines that a bypass is appropriate after following the requirements in §§ 299.21 through 299.26, the Secretary—
(1) Waives the requirements under section 1117 or 8501 of the ESEA, as applicable, for the agency, consortium, or entity; and
(2) Arranges for the provision of equitable services to those children, teachers or other educational personnel, and families, as applicable, through arrangements subject to the requirements of section 1117 or 8501 of the ESEA, as applicable, and sections 8503 and 8504 of the ESEA.
§ 299.20   Requesting a bypass.
(a) A private school official may request a bypass of an agency, consortium, or entity under the following circumstances:
(1) The private school official has—
(i) Filed a complaint with the State educational agency (SEA) under section 1117(b)(6)(A)-(B) or section 8501(c)(6)(A)-(B) of the ESEA and §§ 299.13 through 299.17 that an agency, consortium, or entity other than the SEA has substantially failed or is unwilling to provide equitable services;
(ii) Requested that the SEA provide equitable services on behalf of the agency, consortium, or entity under section 1117(b)(6)(C) or section 8501(c)(6)(C) of the ESEA; and
(iii) Submitted an appeal of the SEA's resolution of the complaint filed under this paragraph (a)(1) to the Secretary under section 8503(b) of the ESEA and § 299.17.
(2) If an SEA has substantially failed, or is unwilling, to provide equitable services, the private school official has—
(i) Filed a complaint with the SEA under section 8503(a) of the ESEA and §§ 299.13 through 299.16; and
(ii) Submitted an appeal to the Secretary under section 8503(b) of the ESEA and § 299.17 of the SEA's resolution of the complaint filed under paragraph (a)(1) of this section in which the private school official requests a bypass.
(b) An agency, consortium, or entity may request that the Secretary implement a bypass if the agency, consortium, or entity is prohibited by law from providing equitable services under section 1117 or section 8501 of the ESEA.
§ 299.21   Notice of intent to implement a bypass.
(a) Before taking any final action to implement a bypass, the Secretary provides the affected agency, consortium, or entity with written notice.
(b) In the written notice, the Secretary—
(1) States the reasons for the proposed bypass in sufficient detail to allow the agency, consortium, or entity to respond;
(2) Cites the requirement that is the basis for the alleged failure to comply; and
(3) Advises the agency, consortium, or entity that it—
(i) Has a deadline (which must not be fewer than 45 days after receiving the written notice) to submit written objections to the proposed bypass; and
(ii) May request in writing the opportunity for a hearing to show cause why the Secretary should not implement the bypass.
§ 299.22   Filing requirements.
(a) Any written submission under § 299.21 must be filed by hand delivery, mail, or email.
(b) The filing date for a written submission is the date on which the document is—
(1) Hand delivered;
(2) Mailed; or
(3) Emailed.
§ 299.23   Bypass procedures.
Sections 299.24 through 299.26 describe the procedures that the Secretary uses in conducting a show-cause hearing. The hearing officer may modify the procedures for a particular case if all parties agree that the modification is appropriate.
§ 299.24   Appointment and functions of a hearing officer.
(a) If an agency, consortium, or entity requests a hearing to show cause why the Secretary should not implement a bypass, the Secretary appoints a hearing officer and notifies appropriate representatives of the affected private school children, teachers or other educational personnel, or families that they may participate in the hearing.
(b) The hearing officer has no authority to require or conduct discovery or to rule on the validity of any statute or regulation.
(c) The hearing officer notifies the agency, consortium, or entity and representatives of the private school children, teachers or other educational personnel, or families of the time and place of the hearing.
§ 299.25   Hearing procedures.
(a) The following procedures apply to a show-cause hearing regarding implementation of a bypass:
(1) The hearing officer arranges for a transcript to be created.
(2) The agency, consortium, or entity and representatives of the private school children, teachers or other educational personnel, or families each may—
(i) Be represented by legal counsel; and
(ii) Submit oral or written evidence and arguments at the hearing.
(b) Within 10 days after the hearing, the hearing officer—
(1) Indicates that a decision will be issued based on the existing record; or
(2) Requests further information from the agency, consortium, or entity, representatives of the private school children, teachers or other educational personnel, or families, or Department officials.
§ 299.26   Decision.
(a)(1) Within 120 days after the record of a show-cause hearing is closed, the hearing officer issues a written decision on whether the Secretary should implement a bypass.
(2) The hearing officer sends copies of the decision to the agency, consortium, or entity; representatives of the private school children, teachers or other educational personnel, or families; and the Secretary.
(b) Within 30 days after receiving the hearing officer's decision, the agency, consortium, or entity, and representatives of the private school children, teachers or other educational personnel, or families may each submit to the Secretary written comments on the decision.
(c) The Secretary may adopt, reverse, modify, or remand the hearing officer's decision.
§ 299.27   Judicial review.
If an agency, consortium, or entity is dissatisfied with the Secretary's final action after a proceeding under §§ 299.13 through 299.26, it may, within 60 days after receiving notice of that action, file a petition for review with the United States Court of Appeals for the circuit in which it is located.
§ 299.28   Continuation of a bypass.
The Secretary continues a bypass until the Secretary determines, in consultation with the relevant agency, consortium, or entity and representatives of the affected private school children, teachers or other educational personnel, or families, that there will no longer be any failure or inability on the part of the agency, consortium, or entity to meet the requirements for providing services.