The Vermont Statutes Online
The Vermont Statutes Online have been updated to include the actions of the 2023 session of the General Assembly.
NOTE: The Vermont Statutes Online is an unofficial copy of the Vermont Statutes Annotated that is provided as a convenience.
Title 16: Education
Chapter 101: Special Education
- Subchapter 001: General Provisions
[Section 2941 effective until July 1, 2022; see also section 2941 effective July 1, 2022 set out below.]
§ 2941. Policy and purpose
It is the policy of the State to ensure equal educational opportunities for all children in Vermont. This means that children with disabilities are entitled to receive a free appropriate public education. It is further the policy of the State to pay 60 percent of the statewide costs expended by public education for children with disabilities. The purpose of this chapter is to enable the Agency to ensure the provision of the special educational facilities and instruction necessary to meet the needs of children with disabilities. (Amended 1965, No. 152, § 1; 1987, No. 235 (Adj. Sess.), § 2; 1995, No. 157 (Adj. Sess.), § 22; 1997, No. 60, § 29a, eff. July 1, 1998; 2013, No. 92 (Adj. Sess.), § 195, eff. Feb. 14, 2014; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2941 effective July 1, 2022; see also section 2941 effective until July 1, 2022 set out above.]
§ 2941. Policy and purpose
It is the policy of the State to ensure equal educational opportunities for all children in Vermont. This means that children with disabilities are entitled to receive a free appropriate public education. The purpose of this chapter is to enable the Agency to ensure the provision of special education services and supports in accordance with individualized education programs necessary to meet the needs of children with disabilities. (Amended 1965, No. 152, § 1; 1987, No. 235 (Adj. Sess.), § 2; 1995, No. 157 (Adj. Sess.), § 22; 1997, No. 60, § 29a, eff. July 1, 1998; 2013, No. 92 (Adj. Sess.), § 195, eff. Feb. 14, 2014; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
§ 2942. Definitions
As used in this chapter
(1) “Child with a disability” means any child in Vermont eligible under State rules to receive special education.
(2) “Special education” means, to the extent required by federal law, specially designed instruction, at no cost to parents or guardian, to meet the unique educational needs of a child with a disability, including classroom instruction, instruction in physical education, home instruction, and instruction in hospitals and institutions. The term includes “related services” as defined in federal law.
(3) “Essential early education” means the education of children with disabilities prior to legal school age for the early acquisition of fundamental skills.
(4) “Federal law” means the Individuals with Disabilities Education Act, 20 U.S.C. §§ 1400-1485, and its implementing regulations, as amended from time to time.
(5) “Residential placement” means the placement of an eligible child, as part of an individualized education program, in a 24-hour residential facility within or outside Vermont that provides educational services consistent with the child’s program.
(6) “Individualized education program” means a program established for an eligible child pursuant to 20 U.S.C. § 1401(19) and the implementing federal regulations and State rules.
(7) “Unilateral placement” means a placement of a child eligible for special education by a person or persons having legal custody of the child in an educational placement other than one recommended by the child’s duly constituted individualized education program team as defined in 20 U.S.C. § 1401(19).
[Subdivision (8) effective July 1, 2022.]
(8) A “student who requires additional support” means a student:
(A) who is on an individualized education program;
(B) who is on a section 504 plan under the Rehabilitation Act of 1973, 29 U.S.C. § 794;
(C) who is not on an individualized education program or section 504 plan but whose ability to learn is negatively impacted by a disability or by social, emotional, or behavioral needs, or whose ability to learn is negatively impacted because the student is otherwise at risk;
(D) for whom English is not the primary language; or
(E) who reads below grade level. (Amended 1965, No. 152, § 2; 1971, No. 207 (Adj. Sess.), § 1; 1987, No. 235 (Adj. Sess.), § 3; 1989, No. 107, § 1; 1995, No. 157 (Adj. Sess.), § 22; 1999, No. 117 (Adj. Sess.), § 4; 2013, No. 92 (Adj. Sess.), § 196, eff. Feb. 14, 2014; 2013, No. 96 (Adj. Sess.), § 78; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022; 2019, No. 131 (Adj. Sess.), § 109.)
§ 2943. Secretary of Education for children with disabilities; powers
The Secretary of Education, by virtue of the office, shall be Secretary of Education for children with disabilities and shall superintend all matters relating to the essential early education and special education of children with disabilities. In addition, the Secretary, in coordination with the Department of Mental Health, the Department of Disabilities, Aging, and Independent Living, and the Department for Children and Families, shall ensure that appropriate educational services are provided to children and adolescents with a severe emotional disturbance in accordance with the provisions of 33 V.S.A. chapter 43 and may accept gifts, grants, or other donations to carry out the purpose of this chapter. (Amended 1987, No. 235 (Adj. Sess.), § 4; 1987, No. 264 (Adj. Sess.), § 5; 1989, No. 187 (Adj. Sess.), § 5; 1995, No. 157 (Adj. Sess.), § 22; 2011, No. 58, § 13, eff. May 31, 2011; 2013, No. 92 (Adj. Sess.), § 197, eff. Feb. 14, 2014.)
§ 2944. Special education
(a)-(c) [Repealed.]
(d) The Secretary with the advice of the State Board may make grants for programs and may make grants, subject to conditions the Secretary shall establish, to persons whom he or she finds qualified for either part-time or full-time study in programs designed to qualify them as special education personnel.
(e) Within the limits of the funds made available for the purposes of this chapter, the Secretary may provide for the extension of special education to a person with a disability, having attained the age of 21, in order to complete a program of special education in which the person has participated. Reimbursement and State aid provisions of this chapter shall apply to individuals provided education under this subsection.
(f) The State Board of Education shall, by rule, require that whenever an individual education program requires related services, the program shall include a statement that the team has made the determination that the services are necessary consistent with the requirements of 34 C.F.R. § 300.16, as amended from time to time.
(g) Any public or approved independent secondary school receiving State education funds shall allow an enrolled student to choose to participate in the graduation ceremony and senior year activities of the student’s peers if:
(1) the student is receiving specialized instruction or services, from or through the school, described in an individualized education program (“IEP”) or a Section 504 plan;
(2) under the IEP or Section 504 plan, the student will need to remain enrolled in the school after that graduation ceremony in order to complete his or her secondary education, including special education and transition services; and
(3) the student, as a result of his or her disability or impairment, needs to remain enrolled in the school after that graduation ceremony in order to complete his or her secondary education.
(h) A school shall not be required to permit a student to participate in a graduation ceremony or senior year activities pursuant to subsection (g) of this section if the student has not met graduation requirements for reasons that are wholly unrelated to the student’s disability.
(i) A student who participates in a graduation ceremony pursuant to subsection (g) of this section shall not receive a diploma as part of that ceremony, but shall receive a certificate of recognition in a form determined by the school. If on an IEP, the student shall receive a regular high school diploma upon satisfactory completion of all necessary graduation requirements and at a time determined by the IEP team. If on a Section 504 plan, the student shall receive a regular high school diploma upon satisfactory completion of all necessary graduation requirements. Unless a school determines otherwise, a student may participate in no more than one graduation ceremony.
(j) A student’s participation in a graduation ceremony pursuant to subsection (g) of this section shall not affect or limit the student’s eligibility for special education services, related services, transition services, or Section 504 services following the ceremony. (Amended 1967, No. 73, § 1; 1969, No. 172 (Adj. Sess.), § 1; 1971, No. 207 (Adj. Sess.), § 2; 1977, No. 14; 1977, No. 194 (Adj. Sess.), §§ 2, 3; 1987, No. 235 (Adj. Sess.), § 11(1)-(3); 1995, No. 157 (Adj. Sess.), § 22; 1997, No. 60, § 10, eff. June 26, 1997; 2009, No. 153 (Adj. Sess.), § 22, eff. June 3, 2010; 2013, No. 92 (Adj. Sess.), § 198, eff. Feb. 14, 2014.)
§ 2945. State Advisory Panel on Special Education
(a) The State Advisory Panel on Special Education (Panel) is created to provide guidance with respect to special education and related services for children with disabilities in the State. Members of the Panel shall be appointed by the Governor, with the advice of the Secretary of Education. The Panel shall perform its duties, and members of the Panel shall be appointed, in accordance with federal law. In addition to members appointed to the Panel to satisfy the requirements under federal law, the members of the Panel shall include a representative of each body designated by the State under federal law as the Parent Training and Information Center and the Protection and Advocacy System. The total number of members on the Panel shall not exceed 37 members.
(b) The Panel shall elect an executive committee from among its members. The executive committee shall be composed of seven members of the Panel, one of whom shall be the chair of the Panel. A majority of the members of the executive committee shall be individuals with disabilities or parents of children with disabilities (ages birth through 26 years of age). The executive committee shall call meetings of the Panel and shall direct the work of the Panel.
(c) The Panel shall advise both the Agency of Education and the State Board of Education on those matters upon which the Panel is required, under federal law, to advise the State Education Agency.
(d) Members of the Panel shall be entitled to per diem compensation and reimbursement of expenses as permitted under 32 V.S.A. § 1010. (Amended 1961, No. 36, eff. March 24, 1961; 1967, No. 73, § 2; 1971, No. 207 (Adj. Sess.), § 3; 1977, No. 167 (Adj. Sess.), § 1, eff. March 31, 1978; 1995, No. 157 (Adj. Sess.), §§ 10, 22; 2003, No. 36, § 16; 2011, No. 58, § 4, eff. May 31, 2011; 2011, No. 129 (Adj. Sess.), § 14, eff. May 11, 2012; 2013, No. 92 (Adj. Sess.), § 199, eff. Feb. 14, 2014; 2017, No. 49, § 33, eff. May 23, 2017; 2019, No. 97 (Adj. Sess.), § 1, eff. April 28, 2020.)
§ 2946. Repealed. 1987, No. 235 (Adj. Sess.), § 11(4).
§ 2947. Repealed. 1987, No. 235 (Adj. Sess.), § 11(5).
§ 2948. State aid
(a) For the payment of general State aid, children with disabilities shall be counted in the same manner as children who do not have disabilities.
(b) [Repealed.]
(c) Each supervisory union shall receive an essential early education grant each school year. Grants shall be distributed according to the estimated number of children from three through five years of age. The State Board by rule shall encourage coordination of services and may set other terms of the grant. Each supervisory union shall be responsible for the remainder of the costs of providing necessary services under section 2956 of this title. Annually, for each following fiscal year, the essential early education grant shall be increased by the most recent cumulative price index, as of November 15, for State and local government purchases of goods and services from fiscal year 2002 through that following fiscal year, as provided through the State’s participation in the New England Economic Project.
(d), (e) [Repealed.]
(f) If a student is being provided education or special education or both in a school operated by the Department of Corrections, the Department of Corrections shall serve the student as if the Department were the school district of residence of the student.
(g) Notwithstanding any law to the contrary, a child with a disability who is residing in a State school, hospital, or community residential facility or in a State-approved private residential facility shall be provided special education in accordance with this chapter by the supervisory union in which the facility is located; provided, however, that this special education may be directly provided by the facility in which the child resides when the child’s individualized education program and treatment plans indicate that the facility is the most appropriate educational placement for the child. Programs of special education provided by a facility described in this subsection shall be subject to the approval of the Secretary.
(h)-(j) [Repealed.]
(k) For the costs of students in the custody of the Department of Corrections, the Secretary of Education shall pay for the costs of special education in accordance with the provisions of 28 V.S.A. § 120.
(l) [Repealed.]
(m) All other State aid to supervisory unions shall be set forth in subchapter 2 of this chapter.
(n) If a student is being provided education or special education, or both, in a school operated by the Department for Children and Families, the funding and provision of services shall be the responsibility of the Department for Children and Families and special education procedural responsibility shall be the responsibility of the supervisory union for the school district of residence of the student’s parent, parents, or guardian. (Amended 1961, No. 83; 1969, No. 172 (Adj. Sess.), § 2; 1971, No. 207 (Adj. Sess.), § 4; 1977, No. 194 (Adj. Sess.), §§ 4, 5; 1981, No. 170 (Adj. Sess.), § 6a, eff. April 19, 1982; 1987, No. 235 (Adj. Sess.), §§ 5, 11(6); 1989, No. 107, §§ 2, 3, 12; 1989, No. 230 (Adj. Sess.), § 13, eff. July 1, 1991; 1995, No. 157 (Adj. Sess.), § 6, eff. July 1, 1997; 1995, No. 157 (Adj. Sess.), §§ 22, 30(a)(5), (c); 2001, No. 63, § 170c; 2005, No. 182 (Adj. Sess.), § 7; 2011, No. 58, §§ 14, 15, eff. May 31, 2011; 2013, No. 92 (Adj. Sess.), § 200, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2949. Reciprocal agreements with other states
The State Board of Education, with the approval of the Attorney General, is authorized to enter into reciprocal agreements with the boards of education in other states to share in the expense of securing the services of specialists or persons skilled in the education of children with disabilities. (Amended 1995, No. 157 (Adj. Sess.), § 22; 2015, No. 148 (Adj. Sess.), § 1.)
§ 2950. State-placed students
(a) Supervisory union reimbursement. The supervisory union in which there is a school district responsible for educating a State-placed student under section 1075 of this title may claim and the Secretary shall reimburse 100 percent of all special education costs for the student, including costs for mainstream services. As a condition of receiving this reimbursement, the supervisory union shall provide documentation in support of its claim, sufficient to enable the Secretary to determine whether to recommend appropriate cost-saving alternatives. The Secretary may approve any costs incurred in educating a State-placed student who is not eligible for special education that are incurred due to the special needs of the student, and, if approved, the Secretary shall pay those costs. When a State agency places and registers a student in a new district, the district and the supervisory union of which it is a member may request and the Agency of Education or the agency that placed the student, or both, shall provide prompt consultative and technical assistance to the receiving district and the supervisory union.
(b) Residential payments.
(1) For a student in the care and custody of the Commissioner for Children and Families who is placed in a 24-hour residential facility within or outside Vermont, the Secretary of Education shall pay the education costs, and the Commissioner for Children and Families shall arrange for the payment of the remainder of the costs. However, if the State interagency team, as defined in 33 V.S.A. § 4302, finds such placement inappropriate for the student’s education needs, then the Secretary of Education shall pay none of the education costs of the placement and the Commissioner for Children and Families shall arrange for the payment of the full cost of the placement.
(2) For a student who is placed in a 24-hour residential facility within or outside Vermont by a Vermont licensed child placement agency, a designated community mental health agency, any other agency as defined by the Secretary of Education, or a Vermont State agency or department other than the Department of Corrections or the Department for Children and Families, the Secretary of Education shall pay the education costs and the agency or department in whose care the student is placed shall arrange for the payment of the remainder of the costs. However, if the State interagency team, as defined in 33 V.S.A. § 4302, finds such placement inappropriate for the student’s education needs, then the Secretary shall pay none of the education costs of the placement and the agency or department in whose care the student is placed shall arrange for payment of the full cost of the placement. This subdivision does not apply to a student for whom a residential placement is:
(A) specified in the student’s individualized education program; and
(B) funded in collaboration with another agency.
(c) Out-of-state placement. For a State-placed student who is placed outside Vermont and who is attending a public school outside Vermont, the Secretary of Education shall pay the education costs for the student. (Added 1995, No. 157 (Adj. Sess.), § 11; amended 1995, No. 157 (Adj. Sess.), § 28, eff. July 1, 1997; 1997, No. 60, § 11, eff. June 26, 1997; 2001, No. 8, § 11; 2007, No. 82, § 23, eff. July 1, 2008; 2011, No. 58, § 16, eff. May 31, 2011; 2013, No. 92 (Adj. Sess.), § 201, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2951. Repealed. 1987, No. 235 (Adj. Sess.), § 11(7).
§ 2952. Repealed. 2003, No. 122 (Adj. Sess.), § 294w(4).
§ 2953. Repealed. 1987, No. 235 (Adj. Sess.), § 11(8).
§ 2954. Repealed. 1987, No. 235 (Adj. Sess.), § 11(9).
§ 2955. Confidential information
Nothing in 12 V.S.A. § 1612(a) shall apply to this chapter. (Added 1981, No. 221 (Adj. Sess.), § 2.)
§ 2956. Essential early education
After June 30, 1991, all eligible children with disabilities three through five years of age shall have access to appropriate essential early education services. (Added 1987, No. 68, § 4; amended 1989, No. 230 (Adj. Sess.), § 11; 1995, No. 157 (Adj. Sess.), § 22.)
§ 2957. Special education administrative and judicial appeals; limitations
(a) An action against a local, intermediate, or State education agency seeking enforcement of special education rights under State or federal law shall be commenced by an administrative due process hearing within two years of the alleged violation or within two years of the date the alleged violation is or reasonably should have been discovered, and not after.
(b) Subsection (a) of this section notwithstanding, an action against a local, intermediate, or State education agency for reimbursement of the costs of a unilateral special education placement shall be commenced by an administrative due process hearing within 90 days of the unilateral placement, and not after.
(c) Where the parent, legal guardian, or surrogate parent has not been given proper notice of special education rights under State and federal law, including notice of the limitations in this section, such limitations shall run from the time notice of those rights is properly given.
(d) An appeal from a final administrative decision in a special education due process hearing to a court of competent jurisdiction pursuant to 20 U.S.C. § 1415(i)(2) shall be commenced within 90 days from the notice of the final decision, and not after.
(e) Except as provided in 20 U.S.C. § 1412(a)(10)(C) or unless a court or hearing officer determines otherwise, where a unilateral placement has been made without offering the supervisory union for the school district of residence a reasonable opportunity to evaluate the child and to develop an individualized education program, reimbursement may not be sought for any costs incurred before the supervisory union is offered such an opportunity. (Added 1989, No. 107, § 4; amended 2001, No. 8, § 12; 2003, No. 36, § 17; 2005, No. 54, § 15; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2958. Residential Placement Review Team; residential placements
(a) A supervisory union shall notify the parents and the Secretary when it believes residential placement is a possible option for inclusion in a child’s individualized education program.
(b) The Secretary may establish from within the Agency a Residential Placement Review Team. At the discretion of the Secretary, other persons not employed by the Agency may be appointed to serve on the Team. The Team shall make every effort to assist supervisory unions and parents in understanding the range of educational options available as early as possible in the planning process for the child. The Team shall:
(1) advise supervisory unions on alternatives to residential placement;
(2) review each individualized education program calling for residential placement of a student to consider whether the student can be educated in a less restrictive environment;
(3) assist supervisory unions in locating cost-effective and appropriate residential facilities where necessary;
(4) request a new individualized education program where it believes that appropriate alternatives to residential placement are available; and
(5) offer mediation as a means of resolving disputes relating to the need for residential placement or the particular residential facility recommended for a child with a disability.
(c) The State Board shall by rule establish policies and procedures for the operations of the Residential Placement Review Team. The rules shall be consistent with federal law and, at minimum, shall include the following:
(1) provision for the Secretary to initiate a due process proceeding to challenge the need for residential placement where the team believes that a less restrictive educational placement is both available and appropriate for the child with a disability, and to reimburse the supervisory union and the parents or guardian of the child for reasonable costs and attorney’s fees in the event the Secretary does not prevail;
(2) provision for technical assistance, a plan for correction, or withholding of funds under this section where a supervisory union places a child in a residential facility more expensive than an available and appropriate alternative residential facility; however, such withholding of funds shall not exceed the difference between the cost of the two facilities and the rule shall provide an opportunity for appeal of the withholding; and
(3) procedures and timelines to ensure that residential placement of a child with disabilities is not delayed or disrupted so as to adversely affect the child.
(d) Whenever a residential placement is determined to be necessary and appropriate for a child with a disability, the Residential Placement Review Team shall include in the child’s individualized education program goals and objectives designed to reintegrate the child into a local school district.
(e) Costs for residential placement shall be reimbursed under subchapter 2 of this chapter only if the residential facility is approved by the State Board for the purposes of providing special education and related services to children with disabilities. (Added 1989, No. 107, § 5; amended 1995, No. 157 (Adj. Sess.), § 22; 2013, No. 92 (Adj. Sess.), § 202, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 7, eff. May 25, 2018.)
§ 2959. Rulemaking; mediation
(a) The State Board shall adopt rules governing the determination of a child’s eligibility for special education, accounting and financial reporting standards, program requirements, procedural requirements, and the identification of the supervisory union or agency responsible for each child with a disability.
(b) Subject to rules established by the State Board, the Secretary shall offer mediation to parents, children with disabilities, and districts, supervisory unions, and agencies involved in special education disputes. (Added 1987, No. 235 (Adj. Sess.), § 6; amended 1995, No. 157 (Adj. Sess.), § 22; 2013, No. 92 (Adj. Sess.), § 203, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2959a. Education Medicaid receipts
(a) It is the intent of the General Assembly that the State of Vermont shall maximize its receipt of federal Medicaid dollars available for reimbursement of medically related services provided to students who are Medicaid eligible. It is further the intent that:
(1) each supervisory union identify special education and other students eligible for Medicaid reimbursement and, to the extent possible, submit Medicaid bills for services reimbursement; and
(2) the Agencies of Education and of Human Services work with local school districts to maximize reimbursements, including services to non-IEP students.
(b) A Medicaid Reimbursement Special Fund is established within the Agency of Education. Funds received by the State under this section shall be transferred to the Medicaid Reimbursement Special Fund. The Fund receipts shall be allocated in accordance with this section.
(c) At least annually, the Secretary of Education shall pay to each supervisory union submitting Medicaid bills under this section 50 percent of the reimbursed funds generated by the supervisory union’s bill, excluding claims generated by State-placed students. Unless the supervisory union has agreed to use the funds to operate a supervisory unionwide program or to distribute the funds in a different manner, upon receipt, the supervisory union shall distribute the funds to its member school districts based on how the funds were generated. The Secretary may withhold payment due a supervisory union pursuant to section 2950 of this title for a Medicaid-eligible State-placed student if the supervisory union has not submitted a Medicaid claim for reimbursable services for that student.
(d) If the amount of Medicaid reimbursement funds received for services provided in the prior State fiscal year exceeds $25,000,000.00, in addition to the 50 percent of the funds paid to supervisory unions submitting Medicaid bills, 25 percent of the amounts in excess of the $25,000,000.00 shall be paid into an incentive fund created in the Agency of Education. These funds shall be used for an incentive payment to supervisory unions with student participation rates of over 80 percent in accordance with a formula to be developed by the Agency, in consultation with the Vermont Superintendents Association. For any incentive payments made subsequent to fiscal year 2007, the $25,000,000.00 threshold of this subsection shall be increased by the percentage increase of the most recent New England Economic Project Cumulative Price Index, as of November 15, for state and local government purchases of goods and services from fiscal year 2005 through the fiscal year for which the payment is being determined, plus an additional one-tenth of one percent.
(e) Supervisory unions shall use funds received under this section to pay for reasonable costs of administering the Medicaid claims process, and school districts or supervisory unions shall use funds received under this section for prevention and intervention programs in prekindergarten through grade 12. The programs shall be designed to facilitate early identification of and intervention with children with disabilities and to ensure all students achieve rigorous and challenging standards approved and adopted by the State Board or locally adopted standards. A supervisory union shall provide annual written justification to the Secretary of Education on how it or its member districts used the funds. Such annual submission shall show how the funds’ use is expressly linked to those provisions of the supervisory union’s action plan that directly relate to improving student performance. A supervisory union shall include in its annual report the amount of the prior year’s Medicaid reimbursement revenues and the use of Medicaid funds consistent with the purposes set forth in this subsection.
(f) Up to 30 percent of Medicaid reimbursements received under this section shall be available for administrative costs of the Agencies of Education and of Human Services related to the collection, processing, and reporting of education Medicaid reimbursements and statewide programs. The Secretaries of Education and of Human Services shall expend monies from the Fund only as appropriated by the General Assembly.
(g) Remaining reimbursed funds shall be deposited into the Education Fund. (Amended 1999, No. 62, § 126; 1999, No. 66 (Adj. Sess.), § 58, eff. Feb. 8, 2000; 2001, No. 142 (Adj. Sess.), § 186b; 2005, No. 182 (Adj. Sess.), § 19; 2005, No. 215 (Adj. Sess.), § 289; 2007, No. 192 (Adj. Sess.), § 6.024, eff. June 7, 2008; 2009, No. 44, § 41, eff. May 21, 2009; 2013, No. 92 (Adj. Sess.), § 204, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2959b. Individualized education programs
A school district or supervisory union responsible for developing an individualized education program for a child with a disability may consider the cost of the provision of special education or related services to the child if:
(1) the district or supervisory union has developed the individualized education program in accordance with federal law through an individualized program team that included the parents;
(2) the individualized education program team has determined that the child’s placement contained in the program is appropriate for the child as that term is defined in federal law; and
(3) all the options under consideration by the district or supervisory union for fulfilling the requirements of the child’s individualized education program would constitute a free appropriate public education in the least restrictive environment for the child, as those terms are defined in federal law. (Added 1999, No. 117 (Adj. Sess.), § 5.)
- Subchapter 002: Aid for Special Education and Support Services
§ 2961. Census grant
(a) As used in this section:
(1) “Average daily membership” shall have the same meaning as in subdivision 4001(1) of this title, except it shall exclude State-placed students.
(2) “Average daily membership of a supervisory union” means the aggregate average daily membership of the school districts that are members of the supervisory union or, for a supervisory district, the average daily membership of the supervisory district.
(3) “Long-term membership” of a supervisory union in any school year means the average of the supervisory union’s average daily membership over the most recent three school years for which data are available.
(4) “Uniform base amount” means an amount determined by:
(A) dividing an amount:
(i) equal to the average State appropriation for fiscal years 2018, 2019, and 2020 for special education under sections 2961 (standard mainstream block grants), 2963 (special education expenditures reimbursement), and 2963a (exceptional circumstances) of this title; and
(ii) increased by:
(I) for each of fiscal years 2021, 2022, and 2023, the annual change in the National Income and Product Accounts (NIPA) Implicit Price Deflator for State and Local Government Consumption Expenditures and Gross Investment as reported by the U.S. Department of Commerce, Bureau of Economic Analysis (inflation factor); and
(II) for each of fiscal years 2024, 2025, and 2026, the average inflation factor for fiscal years 2021, 2022, and 2023; by
(B) the statewide long-term membership.
(b) The State commits to satisfying its special education maintenance of fiscal support requirement under 34 C.F.R. § 300.163(a).
(c) Each supervisory union shall receive a census grant each fiscal year to support the provision of special education services to students on an individualized education program. Supervisory unions shall use this funding and other available sources of funding to provide special education services to students in accordance with their individualized education programs as mandated under federal law. A supervisory union may use census grant funds to support the delivery of the supervisory union’s comprehensive system of educational services under sections 2901 and 2902 of this title, but shall not use census grant funds in a manner that abrogates its responsibility to provide special education services to students in accordance with their individualized education programs as mandated under federal law.
(d)(1)(A) For fiscal year 2023, the amount of the census grant for a supervisory union shall be:
(i) the average amount it received for fiscal years 2018, 2019, and 2020 or the average amount it received for fiscal years 2019, 2020, and 2021, whichever amount is greater, from the State for special education under sections 2961 (standard mainstream block grants), 2963 (special education expenditures reimbursement), and 2963a (exceptional circumstances) of this title; increased by
(ii) the annual change in the National Income and Product Accounts (NIPA) Implicit Price Deflator for State and Local Government Consumption Expenditures and Gross Investment as reported by the U.S. Department of Commerce, Bureau of Economic Analysis.
(B) The amount determined under subdivision (A) of this subdivision (1) shall be divided by the supervisory union’s long-term membership, to determine the base amount of the census grant, which is the amount of the census grant calculated on a per student basis.
(2) For fiscal year 2027 and subsequent fiscal years, the amount of the census grant for a supervisory union shall be the uniform base amount multiplied by the supervisory union’s long-term membership.
(3) For fiscal years 2024, 2025, and 2026, the amount of the census grant for a supervisory union shall be determined by multiplying the supervisory union’s long-term membership by a base amount established under this subdivision. The base amounts for each supervisory union for fiscal years 2024, 2025, and 2026 shall move gradually the supervisory union’s fiscal year 2023 base amount to the fiscal year 2027 uniform base amount by prorating the change between the supervisory union’s fiscal year 2023 base amount and the fiscal year 2027 uniform base amount over this three-fiscal-year period. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 230 (Adj. Sess.), § 15, eff. July 1, 1991; 1995, No. 157 (Adj. Sess.), § 13; 1997, No. 60, §§ 30, 30a, eff. July 1, 1998; 2003, No. 130 (Adj. Sess.), § 6; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2021; 2019, No. 112 (Adj. Sess.), § 1, eff. July 1, 2022; 2021, No. 175 (Adj. Sess.), § 1, eff. July 1, 2022.)
§ 2961a. Repealed. 1995, No. 157 (Adj. Sess.), § 30(a)(3).
[Section 2962 effective until July 1, 2022; see also section 2962 effective July 1, 2022 set out below.]
§ 2962. Extraordinary services reimbursement
(a) Except as otherwise provided in this subchapter, extraordinary services reimbursement shall be payable, based on where the related cost is incurred, to a town school district, city school district, union school district, unified union school district, incorporated school district, the member school districts of an interstate school district, an unorganized town or gore, or to a supervisory union.
(b) The amount of extraordinary services reimbursement provided to each district or supervisory union shall be equal to 95 percent of its extraordinary special education expenditures.
(c) As used in this subchapter, “extraordinary special education expenditures” means a school district’s or supervisory union’s allowable expenditures that for any one child exceed $60,000.00 for a fiscal year. In this subsection, child means a student with disabilities who is three years of age or older in the current school year. The State Board shall define allowable expenditures that shall include any expenditures required under federal law, and any costs of mediation conducted by a mediator who is approved by the Secretary. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 107, § 6; 1989, No. 230 (Adj. Sess.), §§ 18, 26; 1995, No. 157 (Adj. Sess.), § 14, eff. July 1, 1997; 1995, No. 157 (Adj. Sess.), § 22; 1997, No. 60, § 30b, eff. July 1, 1998; 2003, No. 36, § 13; 2003, No. 130 (Adj. Sess.), § 7; 2013, No. 92 (Adj. Sess.), § 205, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 14, eff. July 1, 2019; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2962 effective July 1, 2022; see also section 2962 effective until July 1, 2022 set out above]
§ 2962. Extraordinary special education reimbursement
(a)(1) As used in this section, “child” means a student with disabilities who is three years of age or older in the current school year.
(2) As used in this subchapter, “extraordinary expenditures” means a supervisory union’s allowable special education expenditures that for any one child in a fiscal year exceed $60,000.00, increased annually by the annual change in the National Income and Product Accounts (NIPA) Implicit Price Deflator for State and Local Government Consumption Expenditures and Gross Investment as reported by the U.S. Department of Commerce, Bureau of Economic Analysis.
(3) The State Board of Education shall define allowable special education expenditures that shall include any expenditures required under federal law in order to implement fully individual education programs under the Individuals with Disabilities Education Act, 20 U.S.C. chapter 33, and any costs of mediation conducted by a mediator who is approved by the Secretary.
(b) If a supervisory union has extraordinary expenditures, it shall be eligible for extraordinary special education reimbursement (extraordinary reimbursement) as provided in this section.
(c) A supervisory union that has extraordinary expenditures in a fiscal year for any one child shall be eligible for extraordinary reimbursement equal to:
(1) an amount equal to its special education expenditures in that fiscal year for that child that exceed the extraordinary expenditures threshold amount under subdivision (a)(2) of this section (excess expenditures) multiplied by 95 percent; plus
(2) an amount equal to the lesser of:
(A) the amount of its excess expenditures; or
(B)(i) the extraordinary expenditures threshold amount under subdivision (a)(2) of this section; minus
(ii) the base amount of the census grant received by the supervisory union under subsection 2961(d) of this title for that fiscal year; multiplied by
(iii) 60 percent.
(d) The State Board of Education shall establish by rule the administrative process for supervisory unions to submit claims for extraordinary reimbursement under this section and for the review and payment of those claims.
(e) Under section 2973 of this title, a supervisory union, in its role as the local education agency, may place a student with an individualized education program under the Individuals with Disabilities Education Act, 20 U.S.C. chapter 33, with certain approved independent schools that accept public tuition. If the approved independent school is entitled to special education cost reimbursement under that section, it may bill the supervisory union for excess special education costs incurred by the independent school in providing special education services to that student beyond those covered by general tuition. If those costs for that student exceed the extraordinary expenditures threshold as defined in subdivision (a)(2) of this section, the supervisory union shall be entitled to extraordinary reimbursement under this section for that student as if it incurred those costs directly. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 107, § 6; 1989, No. 230 (Adj. Sess.), §§ 18, 26; 1995, No. 157 (Adj. Sess.), § 14, eff. July 1, 1997; 1995, No. 157 (Adj. Sess.), § 22; 1997, No. 60, § 30b, eff. July 1, 1998; 2003, No. 36, § 13; 2003, No. 130 (Adj. Sess.), § 7; 2013, No. 92 (Adj. Sess.), § 205, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 14, eff. July 1, 2019; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2963 repealed effective July 1, 2022.]
§ 2963. Special education expenditures reimbursement
(a) Based on where the related cost is incurred, each town school district, city school district, union school district, unified union school district, incorporated school district, the member school districts of an interstate school district, and unorganized town or gore or supervisory union shall receive a special education expenditures reimbursement grant each school year.
(b) The amount of a school district’s or supervisory union’s special education expenditures reimbursement shall be equal to the total of its special education expenditures multiplied by the reimbursement rate for that year.
(c) As used in this subchapter:
(1) Special education expenditures are allowable expenditures for special education, as defined by rule of the State Board, less the following:
(A) revenue from federal aid for special education;
(B) mainstream service costs, as defined in subdivision 2961(c)(1) of this title;
(C) extraordinary special education expenditures, as defined in section 2962 of this title;
(D) any transportation expenses already reimbursed;
(E) special education costs for a student eligible for aid under section 2963a of this title; and
(F) other State funds used for special education costs as defined by the State Board by rule.
(2) The State Board shall define allowable expenditures under this subsection. Allowable expenditures shall include any expenditures required under federal law.
(3) “Special education expenditures reimbursement rate” means a percentage of special education expenditures that is calculated to achieve the 60 percent share required by subsection 2967(b) of this title.
(d) [Repealed.] (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 107, § 7; 1989, No. 230 (Adj. Sess.), § 19, eff. July 1, 1991; 1991, No. 104, § 1, eff. June 27, 1991; 1991, No. 104, § 3; 1995, No. 157 (Adj. Sess.), § 15, eff. July 1, 1997; 1997, No. 60, § 30c, eff. July 1, 1998; 1997, No. 71 (Adj. Sess.), § 114, eff. March 11, 1998; 2001, No. 8, § 13; 2003, No. 36, § 14; 2003, No. 130 (Adj. Sess.), § 8; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; repealed on July 1, 2022 by 2017, No. 173 (Adj. Sess.), § 5, as amended by 2019, No. 112 (Adj. Sess.), § 10(b).)
[Section 2963a repealed effective July 1, 2022.]
§ 2963a. Exceptional circumstances
(a) In lieu of reimbursement under section 2963 of this title, the Secretary shall reimburse a school district or supervisory union for 80 percent of the costs not eligible for reimbursement under section 2962 of this title for each student causing the school district or supervisory union to be eligible for extraordinary services reimbursement pursuant to that section. However, in order for a school district or supervisory union to be eligible for reimbursement under this section, the total costs of the school district or supervisory union eligible for extraordinary services reimbursement must equal or exceed 15 percent of the total costs eligible for State assistance under sections 2961, 2962, and 2963 of this title.
(b) An eligible school district or supervisory union may apply to the Secretary to receive reimbursement under this section. The Secretary shall award reimbursement to a school district or supervisory union under this section if the Secretary makes a determination that the school district or supervisory union considered all the cost-effective and appropriate available alternatives for placement and programs for students before incurring these costs. A decision of the Secretary shall be final. (Added 1997, No. 71 (Adj. Sess.), § 87, eff. March 11, 1998; amended 1999, No. 108 (Adj. Sess.), § 2, eff. May 10, 2000; 2005, No. 182 (Adj. Sess.), § 22; 2013, No. 92 (Adj. Sess.), § 206, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; repealed on July 1, 2022 by 2019, No. 72, § E.502.2, as amended by 2019, No. 112 (Adj. Sess.), § 10(b).)
[Section 2964 repealed effective July 1, 2022.]
§ 2964. Service plan
(a) As a condition of receiving assistance under this subchapter, a supervisory union shall file a service plan with the Secretary annually on or before October 15. The service plan shall contain the anticipated special education expenditures for the following school year for the supervisory union and its member districts. The plan shall be in a form prescribed by the Secretary and shall include information on services planned and anticipated expenditures.
(b) If a supervisory union fails to file a service plan by October 15, the Secretary may withhold any funds due the supervisory union and its member districts under this title until a service plan is filed and accepted by the Secretary as properly completed. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 107, § 8; amended 1989, No. 230 (Adj. Sess.), § 20, eff. July 1, 1991; 1995, No. 157 (Adj. Sess.), § 16; 2013, No. 92 (Adj. Sess.), § 207, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; repealed on July 1, 2022 by 2019, No. 72, § E.502.2 as amended by 2019, No. 112 (Adj. Sess.), § 10(b).)
§ 2965. Withholding of aid
If a supervisory union, school district, or agency fails to meet its legally established obligations toward a child with a disability or the child’s parent, and as a result the Agency of Education incurs costs to meet these obligations beyond those otherwise incurred under this chapter, the Secretary shall withhold the amount of funds incurred from any grants due the supervisory union, school district, or agency under this subchapter. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1995, No. 157 (Adj. Sess.), § 22; 2013, No. 92 (Adj. Sess.), § 208, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017.)
§ 2966. Repealed. 1995, No. 157 (Adj. Sess.), § 30(a)(4).
[Section 2967 effective until July 1, 2022; see also section 2967 effective July 1, 2022 set out below.]
§ 2967. Aid projection; State share
(a) On or before December 15, the Secretary shall publish an estimate, by supervisory union and its member districts to the extent they anticipate reimbursable expenditures under this chapter, of the amount of State assistance necessary to fully fund sections 2961 through 2963 of this title in the ensuing school year.
(b) The total expenditures made by the State in any fiscal year pursuant to this chapter shall be 60 percent of the statewide total special education expenditures of funds that are not derived from federal sources. Special education expenditures shall include:
(1) costs eligible for grants and reimbursements under sections 2961 through 2963a of this title;
(2) costs for services for persons who are visually impaired and persons who are deaf and hard of hearing;
(3) costs for the interdisciplinary team program;
(4) costs for regional specialists in multiple disabilities;
(5) funds expended for training and programs to meet the needs of students with emotional behavioral problems under subsection 2969(c) of this title; and
(6) funds expended for training under subsection 2969(d) of this title. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 230 (Adj. Sess.), § 27; 1995, No. 157 (Adj. Sess.), § 17; 1997, No. 60, § 30d, eff. July 1, 1998; 1997, No. 71 (Adj. Sess.), § 88, eff. March 11, 1998; 2003, No. 36, § 15; 2003, No. 130 (Adj. Sess.), § 9; 2011, No. 58, § 5, eff. May 31, 2011; 2013, No. 92 (Adj. Sess.), § 209, eff. Feb. 14, 2014; 2013, No. 96 (Adj. Sess.), § 79; 2013, No. 142 (Adj. Sess.), § 31; 2015, No. 131 (Adj. Sess.), § 25; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022; 2019, No. 112 (Adj. Sess.), § 2, eff. July 1, 2022.)
[Section 2967 effective July 1, 2022; see also section 2967 effective until July 1, 2022 set out above.]
§ 2967. Aid projection
(a) On or before December 15, the Secretary shall publish an estimate, by each supervisory union, of its anticipated State special education funding under this chapter for the ensuing school year.
(b) As used in this section, State special education funding shall include:
(1) funds eligible for grants and reimbursements under sections 2961 and 2962 of this title;
(2) funds for services for persons who are visually impaired;
(3) funds for persons who are deaf or hard of hearing;
(4) funds for the interdisciplinary team program;
(5) funds expended for training and programs to meet the needs of students with emotional or behavioral challenges under subsection 2969(c) of this title; and
(6) funds expended for training under subsection 2969(d) of this title. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 230 (Adj. Sess.), § 27; 1995, No. 157 (Adj. Sess.), § 17; 1997, No. 60, § 30d, eff. July 1, 1998; 1997, No. 71 (Adj. Sess.), § 88, eff. March 11, 1998; 2003, No. 36, § 15; 2003, No. 130 (Adj. Sess.), § 9; 2011, No. 58, § 5, eff. May 31, 2011; 2013, No. 92 (Adj. Sess.), § 209, eff. Feb. 14, 2014; 2013, No. 96 (Adj. Sess.), § 79; 2013, No. 142 (Adj. Sess.), § 31; 2015, No. 131 (Adj. Sess.), § 25; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022; 2019, No. 112 (Adj. Sess.), § 2, eff. July 1, 2022.)
[Section 2968 repealed effective July 1, 2022.]
§ 2968. Reports
(a) On or before November 15, March 15, and August 1 of each school year, each supervisory union and its member districts to the extent they incur reimbursable expenditures under this chapter shall file a financial report with the Secretary in a form prescribed by the Secretary. The report shall describe total expenditures for special education actually incurred during the preceding period, and shall describe revenues derived from different funding sources, including federal assistance, State assistance under this chapter, and local effort.
(b) If a supervisory union or its member districts that have incurred reimbursable expenditures under this chapter fail to file a complete report by August 1, until the properly completed August 1 report is filed and accepted by the Secretary, the Secretary may withhold any funds due the supervisory union or school district under this title and shall subtract $100.00 per business day from funds due to the supervisory union or school district under this title for that fiscal year. The Secretary may waive the $100.00 penalty required under this subsection upon appeal by the supervisory union or school district. The Secretary shall establish procedures for administration of this subsection.
(c) The Secretary shall review and monitor the reports received pursuant to subsection (a) of this section as well as the service plans received pursuant to section 2964 of this title, and shall assist supervisory unions and school districts to complete and submit these documents in a timely and accurate fashion.
(d) Special education receipts and expenditures shall be included within the audits required of a supervisory union and its member districts that have incurred reimbursable expenditures under this chapter pursuant to section 323 of this title. (Added 1987, No. 235 (Adj. Sess.), § 7; amended 1989, No. 230 (Adj. Sess.), § 21; 1995, No. 157 (Adj. Sess.), § 18; 2013, No. 92 (Adj. Sess.), § 210, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; repealed on July 1, 2022 by 2019, No. 72, § E.502.2, as amended by 2019, No. 112 (Adj. Sess.), § 10(b).)
[Section 2969 effective until July 1, 2022; see also section 2969 effective July 1, 2022 set out below.]
§ 2969. Payments
(a) On or before August 15, December 15, and April 15 of each school year, the State Treasurer shall withdraw from the Education Fund, based on warrant of the Commissioner of Finance and Management, and shall forward to each supervisory union and its member districts to the extent they anticipate reimbursable expenditures under this chapter, the amount of State assistance estimated in accordance with State Board rules to be necessary to fund sections 2961 through 2963a of this title in the current fiscal period. The State Board shall by rule ensure that the amount of such assistance shall be adjusted to compensate for any overpayments or underpayments determined, after review and acceptance of the reports submitted under section 2968 of this title, to have been made in previous periods. Notwithstanding this subsection, failure to submit the reports within the timelines established by subsection 2968(a) of this title shall result in the withholding of any payments until the report is filed.
(b) [Repealed.]
(c) For the purpose of meeting the needs of students with emotional behavioral problems, each fiscal year the Secretary shall use for training, program development, and building school and regional capacity, up to one percent of the State funds appropriated under this subchapter.
(d) For the training of teachers, administrators, and other personnel in the identification and evaluation of, and provision of education services to children who require educational supports, each fiscal year the Secretary shall use up to 0.75 percent of the State funds appropriated under this subchapter. In order to set priorities for the use of these funds, the Secretary shall identify effective practices and areas of critical need. The Secretary may expend up to five percent of these funds for statewide training and shall distribute the remaining funds to school districts or supervisory unions.
(e) School districts and supervisory unions that apply for funds under this section must submit a plan for training that will result in lasting changes in their school systems and give assurances that at least 50 percent of the costs of training, including in-kind costs, will be assumed by the applicant. The Secretary shall establish written procedures and criteria for the award of such funds. In addition, the Secretary may identify schools most in need of training assistance and may pay for 100 percent of the assistance to the supervisory union or school district for these schools to fund the provision of training assistance for these schools. (Added 1989, No. 107, § 9; amended 1989, No. 230 (Adj. Sess.), §§ 7, 22; 1995, No. 157 (Adj. Sess.), § 19 eff. July 1, 1997; 1995, No. 157 (Adj. Sess.), § 24; 1997, No. 60, § 30e, eff. July 1, 1998; 1997, No. 71 (Adj. Sess.), § 116, eff. March 11, 1998; 2005, No. 71, § 267; 2013, No. 92 (Adj. Sess.), § 211, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2969 effective July 1, 2022; see also section 2969 effective until July 1, 2022 set out above.]
§ 2969. Payments
(a)(1) On or before August 15, December 15, and April 15 of each fiscal year, the State Treasurer shall withdraw from the Education Fund, based on a warrant issued by the Commissioner of Finance and Management, and shall forward to each supervisory union one-third of the census grant due to the supervisory union under section 2961 of this title for that fiscal year.
(2) On or before November 15, January 15, April 15, and August 1 of each school year, each supervisory union, to the extent it incurs extraordinary expenditures under section 2962 of this title, shall file a financial report with the Secretary in a form prescribed by the Secretary. The report shall describe total extraordinary expenditures actually incurred during the reporting period.
(3) On or before December 15, February 15, May 15, and September 15 of each school year, based on a warrant issued by the Commissioner of Finance and Management, the State Treasurer shall withdraw from the Education Fund and shall forward to each supervisory union the amount of extraordinary reimbursement incurred by the supervisory union under section 2962 of this title that is unreimbursed and determined by the Agency of Education to be payable to the supervisory union.
(b) [Repealed.]
(c) For the purpose of meeting the needs of students with emotional or behavioral challenges, each fiscal year the Secretary shall use for training, program development, and building school and regional capacity up to one percent of the State funds appropriated under this subchapter.
(d) For the training of teachers, administrators, and other personnel in the identification and evaluation of and provision of educational services to children who require educational supports, each fiscal year the Secretary shall use up to 0.75 percent of the State funds appropriated under this subchapter. In order to set priorities for the use of these funds, the Secretary shall identify effective practices and areas of critical need. The Secretary may expend up to five percent of these funds for statewide training and shall distribute the remaining funds to school districts or supervisory unions.
(e) School districts and supervisory unions that apply for funds under this section must submit a plan for training that will result in lasting changes in their school systems and give assurances that at least 50 percent of the costs of training, including in-kind costs, will be assumed by the applicant. The Secretary shall establish written procedures and criteria for the award of such funds. In addition, the Secretary may identify schools most in need of training assistance and may pay for 100 percent of the assistance to the supervisory union or school district for these schools to fund the provision of training assistance for these schools. (Added 1989, No. 107, § 9; amended 1989, No. 230 (Adj. Sess.), §§ 7, 22; 1995, No. 157 (Adj. Sess.), § 19 eff. July 1, 1997; 1995, No. 157 (Adj. Sess.), § 24; 1997, No. 60, § 30e, eff. July 1, 1998; 1997, No. 71 (Adj. Sess.), § 116, eff. March 11, 1998; 2005, No. 71, § 267; 2013, No. 92 (Adj. Sess.), § 211, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
§§ 2970, 2971. [Reserved for future use.]
§ 2972. Repealed. 1995, No. 157 (Adj. Sess.), § 30(a)(4).
[Section 2973 effective until July 1, 2023; see also section 2973 effective July 1, 2023 set out below.]
§ 2973. Independent school tuition rates
(a) The Secretary shall establish minimum standards of services for students receiving special education in independent schools in Vermont; shall set, after consultation with independent schools in Vermont, the maximum rates to be paid by the Agency and school districts for tuition, room, and board based on the level of services; and may advise independent schools as to the need for certain special education services in Vermont.
(b) Neither school districts nor any State agency shall pay rates for tuition, room, and board, for students receiving special education in independent schools outside Vermont that are in excess of allowable costs approved by the authorized body in the state in which the independent school is located, except in exceptional circumstances or for a child who needs exceptional services, as approved by the Secretary.
(c) The State Board is authorized to enter into interstate compacts with other states to regulate rates for tuition, room, and board for students receiving special education in independent schools. (Added 1989, No. 230 (Adj. Sess.), § 28; 1991, No. 24, § 11; 2013, No. 92 (Adj. Sess.), § 212, eff. Feb. 14, 2014; 2017, No. 173 (Adj. Sess.), § 21, eff. July 1, 2023.)
[Section 2973 effective July 1, 2023; see also section 2973 effective until July 1, 2023 set out above.]
§ 2973. Independent school tuition rates
(a)(1) Notwithstanding any provision of law to the contrary, an approved independent school that accepts public tuition shall enroll any student with an individualized education program who requires special education services and who is placed in the approved independent school as an appropriate placement and least restrictive environment for the student by the student’s individualized education program team or by the local education agency (LEA); provided, however, that this requirement shall not apply to an independent school that limits enrollment to students who are on an individualized education program or a plan under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and who are enrolled pursuant to a written agreement between the LEA and the school.
(2) In placing a student with an independent school under subdivision (1) of this subsection, the student’s individualized education program team and the LEA shall comply with all applicable federal and State requirements.
(3) An approved independent school is not required to demonstrate that it has the resources to serve every category of special education as defined under State Board of Education rules in order to be approved or retain its approval to receive public funding for general tuition.
(4) The terms “special education services,” “LEA,” and “individualized education program” or “IEP” as used in this section shall have the same meanings as defined by State Board rules.
(b)(1) The Secretary of Education shall establish minimum standards of services for students receiving special education services in independent schools in Vermont and may advise independent schools as to the need for certain special education services in Vermont.
(2)(A) The Secretary of Education shall set, after consultation with independent schools in Vermont, and based on the level of services provided by the schools, the maximum rates to be paid by the Agency and supervisory unions or school districts for tuition, room, and board for residential placement of students who require special education services. The amount charged by an independent school for tuition shall reflect the school’s actual or anticipated costs of providing special education services to the student and shall not exceed the maximum rates set by the Secretary, provided that the Secretary may permit charges in excess of these maximum rates where the Secretary deems warranted.
(B)(i) An approved independent school that enrolls a student under subdivision (a)(1) of this section may bill the responsible LEA for excess special education costs incurred by the independent school in providing special education services beyond those covered by general tuition. Reimbursement of these excess special education costs shall be based on the direct-cost rates approved by the Secretary for services actually provided to the student consistent with the Agency of Education Technical Manual for special education cost accounting. The Agency of Education shall publish specific elements that must be included as part of an independent school’s invoice for excess special education costs, and these elements shall be included in the written agreement required under subdivision (c)(2) of this section.
(ii) In establishing the direct-cost rates for reimbursement under this subdivision (B), the Secretary shall apply the principle of treating an approved independent school and a public school with parity in the amount of federal, State, and local contributions to cover the costs of providing special education services.
(iii) An approved independent school that enrolls a student under subdivision (a)(1) of this section shall provide such documentation to the Secretary as the Secretary deems necessary in order to ensure that amounts payable under this subdivision (B) to the school are reasonable in relation to the special education services provided by the school. The Secretary may withhold, or direct an LEA to withhold, payment under this subdivision pending the Secretary’s receipt of required documentation under this subdivision, or may withhold, or direct an LEA to withhold, an amount determined by the Secretary as not reasonable in relation to the special education services provided by the school.
(C)(i) The Secretary shall set, after consultation with independent schools in Vermont, the maximum tuition rates to be paid by the Agency and supervisory unions or school districts to independent schools that limit enrollment to students who are on an IEP or a plan under Section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § 794, and who are enrolled pursuant to a written agreement between the LEA and the school. The maximum tuition rates shall be based on the level of services provided by the school.
(ii) The tuition rates established by the Secretary under this subdivision (C) shall be no more than the costs that are reasonably related to the level of services provided by the school and shall be set forth on a form prescribed for that purpose by the Secretary of Education. The Secretary shall determine the relationship between costs and the level of services by using generally accepted accounting principles, such as those set forth in the Handbook (II) for Financial Accounting of Vermont School Systems.
(iii) After the Secretary approves a tuition rate for an independent school under this subdivision (C), the school shall not exceed that tuition rate until such time as a new tuition rate is approved by the Secretary.
(c)(1) In order to be approved as an independent school eligible to receive State funding under subdivision (a)(1) of this section, the school shall demonstrate the ability to serve students with disabilities by:
(A) demonstrating an understanding of special education requirements, including the:
(i) provision of a free and appropriate public education in accordance with federal and State law;
(ii) provision of education in the least restrictive environment in accordance with federal and State law;
(iii) characteristics and educational needs associated with any of the categories of disability or suspected disability under federal and State law; and
(iv) procedural safeguards and parental rights, including discipline procedures, specified in federal and State law;
(B) committing to implementing the IEP of an enrolled student with special education needs, providing the required services, and appropriately documenting the services and the student’s progress;
(C) employing or contracting with staff who have the required licensure to provide special education services;
(D) agreeing to communicate with the responsible LEA concerning:
(i) the development of, and any changes to, the IEP;
(ii) services provided under the IEP and recommendations for a change in the services provided;
(iii) the student’s progress;
(iv) the maintenance of the student’s enrollment in the independent school; and
(v) the identification of students with suspected disabilities; and
(E) committing to participate in dispute resolution as provided under federal and State law.
(2) An approved independent school that enrolls a student requiring special education services who is placed with the school under subdivision (a)(1) of this section:
(A) shall enter into a written agreement with the LEA committing to the requirements under subdivision (1) of this subsection (c); and
(B) shall ensure that qualified school personnel attend planning meetings and IEP meetings for the student.
(d)(1) If a student is placed with an approved independent school under subsection (a) of this section and either the LEA and the school each certifies, or the hearing officer under subdivision (3) of this subsection certifies, to the Secretary of Education that the school is unable to provide required IEP services due to its inability to retain qualified staff, then the LEA shall make another placement that satisfies the federal requirements to provide the student with a free and appropriate public education in the least restrictive environment.
(2) If the conditions in subdivision (1) of this subsection are satisfied:
(A) the approved independent school shall not be subject to any disciplinary action or the revocation of its approved status by the State Board of Education due to its failure to enroll the student; and
(B) no private right of action shall be created on the part of the student or his or her family members, or any other private party, to:
(i) require the LEA to place the student with the approved independent school or the school to enroll the student; or
(ii) hold the LEA or the approved independent school responsible for monetary damages due to the failure of the school to enroll the student or the necessity for the LEA to make an alternative placement.
(3) If the LEA and approved independent school do not agree on whether the school is unable to retain qualified staff under subdivision (1) of this subsection, then the LEA and the school shall jointly contract with a hearing officer to conduct a hearing with the parties and make a determination, which shall be final. The cost for the hearing officer shall be split evenly between the two parties.
(e) Neither a school district nor any State agency shall pay rates for tuition, room, and board for students receiving special education in independent schools outside Vermont that are in excess of allowable costs approved by the authorized body in the state in which the independent school is located, except in exceptional circumstances or for a child who needs exceptional services, as approved by the Secretary.
(f) The State Board is authorized to enter into interstate compacts with other states to regulate rates for tuition, room, and board for students receiving special education in independent schools. (Added 1989, No. 230 (Adj. Sess.), § 28; 1991, No. 24, § 11; 2013, No. 92 (Adj. Sess.), § 212, eff. Feb. 14, 2014; 2017, No. 173 (Adj. Sess.), § 21, eff. July 1, 2023.)
§ 2973a. Special education; best practices; policy
It is the public policy of the State that integrated special education services are recognized as an essential responsibility of the educational system that benefits all students and contribute to the good of the State. This section and section 2974 of this title recognize that best practices in delivery of such services promote this policy. (Added 2007, No. 82, § 26.)
[Section 2974 effective until July 1, 2022; see also section 2974 effective July 1, 2022 set out below.]
§ 2974. Special education program; fiscal review
(a) Annually, the Secretary shall report to the State Board regarding:
(1) special education expenditures by supervisory unions;
(2) the rate of growth or decrease in special education costs, including the identity of high- and low-spending supervisory unions;
(3) results for special education students;
(4) the availability of special education staff;
(5) the consistency of special education program implementation statewide;
(6) the status of the education support systems in supervisory unions; and
(7) a statewide summary of the special education student count, including:
(A) the percentage of the total average daily membership represented by special education students statewide and by supervisory union;
(B) the percentage of special education students by disability category; and
(C) the percentage of special education students served by public schools within the supervisory union, by day placement, and by residential placement.
(b) The Secretary’s report shall include the following data for both high- and low-spending supervisory unions:
(1) each supervisory union’s special education staff-to-child count ratios as compared to the State average, including a breakdown of ratios by staffing categories;
(2) each supervisory union’s percentage of students in day programs and residential placements as compared to the State average of students in those placements and information about the categories of disabilities for the students in such placements;
(3) whether the supervisory union was in compliance with section 2901 of this title;
(4) any unusual community characteristics in each supervisory union relevant to special education placements;
(5) a review of high- and low-spending supervisory unions’ special education student count patterns over time;
(6) a review of the supervisory union’s compliance with federal and State requirements to provide a free, appropriate public education to eligible students; and
(7) any other factors affecting its spending.
(c) The Secretary shall review low-spending supervisory unions to determine the reasons for their spending patterns and whether those supervisory unions used cost-effective strategies appropriate to replicate in other supervisory unions.
(d) For the purposes of this section, a “high-spending supervisory union” is a supervisory union that, in the previous school year, spent at least 20 percent more than the statewide average of special education eligible costs per average daily membership. Also for the purposes of this section, a “low-spending supervisory union” is a supervisory union that, in the previous school year, spent no more than 80 percent of the statewide average of special education eligible costs per average daily membership.
(e) The Secretary and Agency staff shall assist the high-spending supervisory unions, which have been identified in subsection (a) of this section and have not presented an explanation for their spending that is satisfactory to the Secretary, to identify reasonable alternatives and to develop a remediation plan. Development of the remediation plan shall include an on-site review. The supervisory union shall have two years to make progress on the remediation plan. At the conclusion of the two years or earlier, the supervisory union shall report its progress on the remediation plan.
(f) Within 30 days of receipt of the supervisory union’s report of progress, the Secretary shall notify the supervisory union that its progress is either satisfactory or not satisfactory.
(1) If the supervisory union fails to make satisfactory progress, the Secretary shall notify the supervisory union that, in the ensuing school year, the Secretary shall withhold 10 percent of the supervisory union’s special education expenditures reimbursement pending satisfactory compliance with the plan.
(2) If the supervisory union fails to make satisfactory progress after the first year of withholding, 10 percent shall be withheld in each subsequent year pending satisfactory compliance with the plan; provided, however, before funds are withheld in any year under this subdivision (f)(2), the supervisory union shall explain to the State Board either the reasons the supervisory union believes it made satisfactory progress on the remediation plan or the reasons it failed to do so. The State Board’s decision whether to withhold funds under this subdivision shall be final.
(3) If the supervisory union makes satisfactory progress under any subdivision of this subsection, the Secretary shall release to the supervisory union any special education expenditures reimbursement withheld for the prior fiscal year only.
(g) Within 10 days after receiving the Secretary’s notice under subdivision (f)(1) of this section, the supervisory union may challenge the Secretary’s decision by filing a written objection to the State Board outlining the reasons the supervisory union believes it made satisfactory progress on the remediation plan. The Secretary may file a written response within 10 days after the supervisory union’s objection is filed. The State Board may give the supervisory union and the Secretary an opportunity to be heard. The State Board’s decision shall be final. The State shall withhold no portion of the supervisory union’s reimbursement before the State Board issues its decision under this subsection.
(h) Nothing in this section shall prevent a supervisory union from seeking and receiving the technical assistance of Agency staff to reduce its special education spending. (Added 1997, No. 60, § 31, eff. June 26, 1997; amended 1997, No. 71 (Adj. Sess.), § 115, eff. March 11, 1998; 1999, No. 117 (Adj. Sess.), § 6; 2007, No. 82, § 10; 2013, No. 92 (Adj. Sess.), § 213, eff. Feb. 14, 2014; 2015, No. 11, § 14; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 74, § 24; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2974 effective July 1, 2022; see also section 2974 effective until July 1, 2022 set out above.]
§ 2974. Special education program; fiscal review
Annually, the Secretary shall report to the State Board regarding:
(1) the total amount of census grants made to supervisory unions under section 2961 of this title;
(2) the total amount of extraordinary special education reimbursement made to supervisory unions under section 2962 of this title;
(3) results for special education students;
(4) the availability of special education staff;
(5) the consistency of special education program implementation statewide;
(6) the status of tiered systems of supports in supervisory unions; and
(7) a statewide summary of the special education student count, including:
(A) the percentage of the total average daily membership represented by special education students statewide and by supervisory union;
(B) the percentage of special education students by disability category; and
(C) the percentage of special education students served by public schools within the supervisory union, by day placement, and by residential placement. (Added 1997, No. 60, § 31, eff. June 26, 1997; amended 1997, No. 71 (Adj. Sess.), § 115, eff. March 11, 1998; 1999, No. 117 (Adj. Sess.), § 6; 2007, No. 82, § 10; 2013, No. 92 (Adj. Sess.), § 213, eff. Feb. 14, 2014; 2015, No. 11, § 14; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 74, § 24; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2022.)
[Section 2975 effective until July 1, 2022; see also section 2975 effective July 1, 2022 set out below.]
§ 2975. Unusual special education costs; financial assistance
The Secretary may use up to two percent of the funds appropriated for special education expenditures, as that term is defined in subsection 2967(b) of this title, to directly assist supervisory unions with special education expenditures of an unusual or unexpected nature. These funds shall not be used for exceptional circumstances that are funded under section 2963a of this title. The Secretary’s decision regarding a supervisory union’s eligibility for and amount of assistance shall be final. (Added 2007, No. 66, § 13; amended 2013, No. 92 (Adj. Sess.), § 214, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2021; 2019, No. 112 (Adj. Sess.), § 3, eff. July 1, 2022.)
[Section 2975 effective July 1, 2022; see also section 2975 effective until July 1, 2022 set out above.]
§ 2975. Unusual special education costs; financial assistance
The Secretary may use funds for allowable special education expenditures, as defined in State Board of Education rules, to directly assist supervisory unions with special education expenditures of an unusual or unexpected nature. These funds shall be appropriated in the amount of two percent times the census grant as defined in section 2961 of this title. The Secretary’s decision regarding a supervisory union’s eligibility for and amount of assistance shall be final. (Added 2007, No. 66, § 13; amended 2013, No. 92 (Adj. Sess.), § 214, eff. Feb. 14, 2014; 2015, No. 148 (Adj. Sess.), § 1, eff. July 1, 2017; 2017, No. 173 (Adj. Sess.), § 5, eff. July 1, 2021; 2019, No. 112 (Adj. Sess.), § 3, eff. July 1, 2022.)
