$118.1

Subpart A-Scope of Regulations;
Definitions

§ 118.1 Scope of regulations.

The regulations published in this part are applicable to grants to States for planning and establishing supplementary educational centers and services and guidance, counseling, and testing programs. Regulations applicable to grants for such purposes by the U.S. Commissioner of Education directly to local educational agencies pursuant to section 306 of Title III of the Elementary and Secondary Education Act of 1965, as amended (20 U.S.C. 844b), have been published in Part 126 of this title. Allotments of Federal funds under Title III of the Act to the Departments of Interior and Defense pursuant to section 302(a) (1) of the Act (20 U.S.C. 842(a) (1)) shall be governed by such terms and conditions consistent with the Act as may be mutually agreed upon by these Departments and the Commissioner. Assistance provided under this part is also subject to applicable provisions contained in subchapter A of this chapter (relating to fiscal, administrative, property management, and other matters).

(20 U.S.C. 842 (a) (1))

§ 118.2 Definitions.

As used in this part:

"Act" means the Elementary and Secondary Education Act of 1965, Pub. L. 89-10, as amended.

(20 U.S.C. 841-8448, 845-849)

"Children with specific learning disabilities" means those children who have a disorder in one or more of the basic psychological processes involved in understanding or in using language, spoken or written, which disorder may manifest itself in imperfect ability to listen, think, speak, read, write, spell, or do mathematical calculations. Such disorders include such conditions as perceptual handicaps, brain injury, minimal brain dysfunction, dyslexia, and developmental aphasia. Such term does not include children who have learning problems which are primarily the result of visual, hearing, or motor handicaps, of mental retardation, of emotional disturbance, or of environmental disadvantage. (20 U.S.C. 843 (b) (3))

"Construction" means (a) the erection of new or expansion of existing structures, and the acquisition and installation of equipment therefor; (b) the

(20 U.S.C. 881 (b))

(20 U.S.C. 844(a))

(20 U.S.C. 843 (c) (3))

(20 U.S.C. 843(b)(2))

"Free public education" means education which is provided at public expense, under public supervision and direction, and without tuition charge, and which is provided as elementary or secondary school education in the applicable State. Elementary education may include kindergarten education meeting the above criteria. (20 U.S.C. 845)

"Guidance and counseling," in relation to activities undertaken pursuant to section 303(b) (4) of the Act (20 U.S.C. 843(b)(4)), refers to (a) services to pupils to assist them in assessing and understanding their particular abilities, educational needs, and career and vocational interests in light of all applicable environmental factors and (b) assistance in personal and social development, including the development of a positive self-concept when related to career and vocational guidance and counseling. (20 U.S.C. 843(a), (b)(4))

"Handicapped children" means those children who are mentally retarded, hard of hearing, deaf, speech-impaired, visually handicapped, seriously emotionally disturbed, crippled, or other healthimpaired, who by reason thereof require special education and related services. The term includes children with specific learning disabilities to the extent that such children are health-impaired children who by reason thereof require special education and related services. (20 U.S.C. 843 (b) (3))

"Innovative," as applied to an educational program, project, service or activity, means new or improved ideas, practices, or techniques.

(20 U.S.C. 843 (b) (3))

"Junior college" means an institution of higher education which (a) is organized and administered principally to provide a one-year or two-year program which is acceptable for full credit toward a bachelor's degree; (b) admits as regular students only persons having a certificate of graduation from a school providing secondary education, or the recognized equivalent of such a certificate; (c) is legally authorized within the State to provide a program of education beyond secondary education; (d) is a public or other nonprofit institution; (e) is accredited by a nationally recognized accrediting agency or association, or, if not so accredited (1) is an institution with respect to which the Commissioner has determined that there is satisfactory assurance-considering the resources available to the institution, the period of time, if any, during which it has operated, the effort it is making to meet accreditation standards, and the purpose for which this determination is being made that the institution will meet the accreditation standards of such an agency within a reasonable period of time, or (2) is an institution whose credits are accepted on transfer by not less than three institutions which are so accredited, for credit on the same basis as if transferred from an institution so accredited; (f) is a branch of an institution of higher education offering four or more years of higher education, is located in a community different from, and beyond a reasonable commuting distance from, the community in which the main campus of the parent institution is located.

(20 U.S.C. 844a (b) (1) (B))

"Local educational agency" means a public board of education or other public authority legally constituted within a State for either administrative control or direction of, or to perform a service function for public elementary or secondary schools in a city, county, township, school district, or other political subdivision of a State, or such combination of school districts or counties as is recognized in a State as an administrative agency for its public elementary or secondary schools. The term also includes any other public institution or agency having administrative control and direction of a public elementary or secondary school such as State-operated schools for deaf, blind, mentally retarded, emotionally disturbed or crippled children. "Service function," as used in this paragraph means an educational service which is performed by a legal entity-such as an intermediate agency-whose jurisdiction does not extend to the whole of the State and which is authorized to provide consultative, advisory, or educational program services to public elementary or secondary schools, or which has regulatory functions over agencies having administrative control or direction of public elementary or secondary schools, rather than a service which is performed by a cultural or educational resource.

(20 U.S.C. 881 (f))

"Private school" means a nonprofit school which is operated or controlled by other than a public authority, and which complies with State compulsory school attendance laws or is otherwise recognized or accredited by some procedure customarily used in the State, as having curricula similar to that required of comparable public schools.

(20 U.S.C. 843(b) (4), 844(b) (2) (B), 845(f)) "Seriously emotionally disturbed children" means

(a) Those children who exhibit one or more of the following characteristics over a long period of time and to a marked degree:

(1) An inability to learn that which cannot be explained by intellectual, sensory, or health factors;

(2) An inability to build or maintain satisfactory interpersonal relationships with peers and teachers;

(3) Inappropriate types of behavior or feelings under normal circumstances; (4) General pervasive mood of unhappiness or depression; and/or

(5) A tendency to develop physical symptoms, pains, or fears associated with personal or school problems.

(d) This term does not include those children who are socially maladjusted. (20 U.S.C. 843(b)(3))

"State aid" means any contribution by a State made to or on behalf of a local educational agency within the State for the support of free public elementary and secondary education, for which no repayment is expected.

(20 U.S.C. 845(e))

"State educational agency" means the State board of education or other agency or officer primarily responsible for the supervision of public elementary and secondary schools, or, if there is no such officer or agency, an officer or agency designated by the Governor or by State law. (20 U.S.C. 881(k))

"Technical institute" means an institution of higher education which (1) meets the requirements of subparagraphs (b) through (f) of the definition of "junior college" set forth in this section, and (2) is organized and administered principally to provide a 2-year program in engineering, mathematics, or the physical or biological sciences which program is designed to prepare the student to work as a technician at a semiprofessional level in engineering, scientific, or other technological fields which require the understanding and application of basic engineering, scientific, or mathematical principles or knowledge. (20 U.S.C. 843 (b) (4))

"Testing," in relation to activities undertaken pursuant to Section 303(b) (4) of the Act, means the use of tests which measure abilities from which aptitudes for an individual's educational or career development may be validly inferred. (20 U.S.C. 844a (b) (1) (B))

Subpart B-State Advisory Council

§ 118.3 Establishment and certification. (a) Each State desiring to receive payments under Title III of the Act and the regulations in this part for any fiscal year shall establish a State advisory council which is appointed by the State educational agency, and is broadly representative of the cultural and educational resources (as defined in § 118.2 of this part) of the State and of the public,

(c) Certifications.-(1) By State educational agency. The State plan and each amendment thereto shall include as an attachment a certificate signed by an officer of the State educational agency authorized to submit the plan to the effect that the State plan or amendment thereto has been adopted by the State educational agency and that the State plan, or plan amended, will constitute the basis for operation and administration of the Title III program.

(2) By the State Attorney General. The State plan and each amendment thereto as described in § 118.6(e) of this part shall include as an attachment a certificate signed by the State Attorney General or other appropriate State legal officer to the effect that the State educational agency named in the plan is a "State educational agency" as defined in § 118.2 of this part, that has the legal authority ascribed to it in the State plan pursuant to § 118.7 of this part, and that all the provisions of the State plan may be carried out in the State.

(d) Review by the State Governor. In accordance with § 118.22(b)(2) of this part, and Part 100b of this chapter, the State plan and each amendment thereto shall include as an attachment the comments, if any, of the Governor of the State concerning coordination of Title III programs and projects under the State plan with other State and Federal programs and projects, or a statement from the Chief State School Officer that the Governor has reviewed the plan but no comments were made.

(e) Amendments. Whenever there is any change in the content or administration of the program set forth in the approved State plan, or whenever there is any change in pertinent State law or in the organization, policies, or operations of the State educational agency which materially affects the program under the plan, the State plan shall be appropriately amended and such amendment shall be submitted to the Commissioner for his approval. Any amendment shall be accompanied by a certificate of the State Attorney General or other State legal officer.

(20 U.S.C. 844a (a)(1), (b), 1232c(b); OMB Circular A-95)

§ 118.7 State educational agency.

(a) Designation. The State plan shall give the official name of the State educational agency which will be, either di

rectly or through arrangements with other State or local public agencies, the sole agency responsible for administering the plan.

(b) Authority. The State plan shall set forth the authority of the State educational agency under State law to submit the plan and to administer and supervise the programs set forth therein pursuant to § 118.6 (c) (2) of this part.

(c) Organization. The State plan shall set forth the administrative organization, the qualifications of all staff members involved, and the procedures of the State educational agency for administration of the State plan. Staffing shall be sufficient to carry out the following Title III functions: (1) program coordination; (2) program development; (3) project proposal review; (4) program operations; (5) program evaluation; (6) dissemination; and (7) grants management and finance.

(20 U.S.C. 844a (a) (1) (C), 1232c (b))

(d) Fiscal control. The State plan shall designate the officer or officers of the State educational agency who will have legal authority to receive all funds granted to the State and to authorize their expenditure or transfer to local educational agencies in accordance with § 100b.257 of this chapter. The State plan shall also set forth the fiscal control and fund accounting procedures (consistent with subpart E of the regulations in this part and part 100b of this chapter) under which the designated officer or officers will assure proper disbursement of and accounting for Federal funds paid to the State under Title III of the Act.

(20 U.S.C. 844a (a)(1)(C), (b) (2), and (10)) § 118.8 General plan provisions.

(a) Assessment of educational needs. The State plan shall identify the critical educational needs of the State as a whole and the critical educational needs of the various geographic areas and population groups within the State, and shall describe the process by which such needs were identified. This process shall be based upon the use of objective criteria and measurements and shall include procedures for collecting, analyzing, and validating relevant data and translating such data into determinations of critical educational needs. These determinations and the data upon which they are based shall be periodically reviewed and up