§ 537.29 Under what circumstances does the Secretary permit waivers of requirements for serving non-public school children?

(a) (1) If a State is prohibited by law from providing public educational services to eligible children enrolled in non-public elementary or secondary schools, the Secretary—

(i) Waives this requirement; and

(ii) Arranges for services to affected eligible children by contracting with organizations or individuals within the State qualified to provide educational services in accordance with the Act and this part

(2) For the purpose of determining if the conditions described in paragraph (a)(1) of this section exist in the State, the Secretary requires the SEA to furnish an opinion of the Attorney General of the State.

(b) If the Secretary arranges for services to eligible children attending non-public schools, the Secretary reduces the grant to the SEA, including administrative funds, by the amount of funds for which the SEA would have been eligible on behalf of those children.

(c) Even if an SEA is prohibited by law from providing public educational

Subpart C-How To Apply for a Grant or a Subgrant Under the State-Administered Program and the Development and Dissemination Projects Program?

538.20 What documents does the State submit to receive a grant?

538.21 How is the number of eligible children determined?

538.22 To what extent must a State provide educational services to eligible children enrolled in nonprofit schools? 538.23 When does a State submit its application for a grant?

538.24 What documents must an applicant submit to an SEA to receive a subgrant? 538.25 When does an applicant submit its application?

Subpart D-How Are Grants and Subgrants Made to Applicants Under the State-Administered Program?

538.30 How does the Secretary review an application submitted by an SEA?

538.31 What formula will be used to distribute funds to SEAS with approved applications?

§ 538.1

Subpart A-General

What is the transition program for refugee children?

(a) This program provides educational services to meet the special educational needs of eligible children who are enrolled in public and nonprofit private elementary and secondary schools.

(b) This program funds

(1) Formula grants to States (under the State-Administered Program) based on the number of eligible children in the States; and

(2) Discretionary projects (under the Development and Dissemination Projects Program) designed to produce and demonstrate exemplary approaches, materials, and strategies to meet the special educational needs of eligible children.

(Sec. 412(d)(1) of the Immigration and Nationality Act, as amended)

resettlement programs in its State on file with the Director of the Office of Refugee Resettlement (ORR) in the Department of Health and Human Services (HHS).

(ii) Requirements pertaining to submission and approval of the State plan are contained in 45 CFR Part 400 (Refugee Resettlement Program; Plan and Reporting Requirements for States).

(2) An LEA or a consortium of LEAS may apply to the SEA for a subgrant to provide services to eligible children enrolled in public and nonprofit private schools within its jurisdiction.

(3) If an LEA does not apply for a subgrant to serve eligible children in schools within its jurisdiction, SEA

an

(i) Arranges through subgrants, contracts, or cooperative agreements with public and nonprofit agencies, organizations, and institutions (including institutions of higher education (IHES)) for the provision of services to those children; or

(ii) Provides services directly to those children.

(b) Development and Dissemination Projects Program. The following may apply for a Development and Dissemination project:

(1) An SEA; (2) An LEA;

(3) An IHE; and

(4) Any other public or nonprofit public agency, organization, or institution.

(Sec. 412(a)(6); 412 (d)(1) of the Immigration and Nationality Act, as amended)

§ 538.3 What regulations apply to this program?

The following regulations apply to this program:

(a) General. (1) The regulations in this part 538.

(2) The Education Department General Administrative Regulations (EDGAR) 34 CFR Parts 74, 77, and 78.

(b) State-Administered Program. (1) The regulations in 34 CFR Part 76, except

(i) Section 76.101(a)-(d); (ii) Section 76.102;

(iii) Section 76.103; and (iv) Section 76.105.

(2) The regulations in 45 CFR Part 400 (Refugee Resettlement Program; Plan and Reporting Requirements for States).

(c) Development and Dissemination Projects Program. The regulations in 34 CFR Part 75.

(d) If any sections or provisions of 45 CFR Part 400 or 34 CFR Parts 74-78 do not apply to this program, the inapplicability of those sections or provisions is explicitly stated in these regulations.

(20 U.S.C. 3474(a))

§ 538.4 What definitions apply to this program?

(a) The following definitions are specific to these regulations:

"Act" means the Refugee Act of 1980 (Pub. L. 96-212) as amended.

"Application" includes the terms "State plan" and "general application" as used in EDGAR 34 CFR Parts 7478.

"Bilingual education" means instruction given in, and study of, both English and, to the extent necessary to allow the children to achieve competence in the English language, the native language of the eligible children.

"Eligible children" means children who are

(1)(i) Admitted into the United States as refugees under the authority of the Immigration and Nationality Act, Secs. 203(a)(7) (repealed), 207, or granted asylum in the United States under the authority of Sec. 208 (8 U.S.C. 1153(a)(7) (repealed), 1157, 1158); or

(ii) Paroled into the United States as refugees under the authority of the Immigration and Nationality Act, Sec. 212(d)(5)(8 U.S.C. 1182(d)(5)); or

(iii) Allowed to remain in the United States as refugees because their deportation has been withheld under the authority of the Immigration and Nationality Act, Sec. 243(h)(8 U.S.C. 1253(h)); or

(iv) Granted asylum in the United States as refugees under the authority of 8 CFR Part 108; or

(v) Admitted into the United States as refugees under the authority of the Refugee Act of 1980, Pub. L. 96-212; and

(2) Who are within the age limits for which the applicable State is required or permitted under State law to provide free public elementary and secondary school education for students in kindergarten through grade 12.

"Indochinese children” means aliens who have fled from Cambodia, Vietnam, or Laos, and who

(1) Have been admitted into the United States as refugees under Section 207 of the Immigration and Nationality Act;

(2) Have been paroled into the United States by the Attorney General under Section 212(d)(5) of the Immigration and Nationality Act; or

(3) Are applicants for asylum, or have been granted asylum in the United States.

(b) The following definitions in EDGAR (34 CFR Part 77) apply to these regulations:

Applicant

Application Award

Local educational agency (LEA) Nonprofit

Private Project Secretary State

State educational agency (SEA)

(c) The following definitions in the Elementary and Secondary Education Act of 1965, as amended, apply to these regulations. Construction Elementary school Secondary school

Immigration and Nationality Act, as amended, 20 U.S.C. 2943, and 20 U.S.C. 3474(a)

Subpart B-What Activities May the Transition Program Support?

§ 538.10 What activities are eligible for support under the State-administered program?

The following services may be provided:

(a) Supplemental educational services-with emphasis on instruction to improve English language skills of eligible children-to enable those children to achieve and maintain a satis

factory level of academic performance. These services include

(1) Testing to determine the educational needs of eligible children;

(2) Special English language instruction;

(3) Bilingual education;

(4) Remedial programs of instruction; and

(5) Special materials and supplies.

(b)(1) Up to 15 percent of the award may be used to provide support services for the eligible children, including but not limited to

(i) Inservice training for educational personnel to work with eligible children to enable them more effectively to provide services to those children;

(ii) Training for parents of eligible children to enable them to participate more effectively in the education of their children, and

(iii) School counseling and guidance services for eligible children, including referrals to appropriate social services and health agencies.

(2)(i) In a given year, the Secretary may increase or decrease the 15 percent limit in paragraph (b)(1) of this section if the Secretary determines that the need for these services is proportionately greater or less than the need to provide special educational services.

(ii) To make this determination, the Secretary considers evaluations of ongoing projects under this program and recommendations from persons experienced in educating refugee children.

(iii) The Secretary announces any change in the 15 percent limit through publication of a notice in the FEDERAL REGISTER.

(3) The restrictions in paragraph (b)(1) of this section do not apply where a subgrant, contract, or cooperative arrangement is made, or direct services are provided, on behalf of 40 or fewer eligible children.

(c)(1) An SEA may use up to one percent of the total funds it receives under the State-Administered Program

(i) To ensure proper and efficient administration of funds under this program; and

(ii) To provide technical assistance to subgrantees and others who are

providing services under this program to eligible children.

(2) The total amount of funds used by an SEA for the costs in paragraph (c)(1) of this section may not exceed $200,000.

(Sec. 412(a)(1)(B); 412(a)(6)(B); 412(d)(1) of the Immigration and Nationality Act, as amended)

§ 538.11 What activities are eligible for support under the development and dissemination projects program?

(a) The following activities are eligible for support—

(1) Development of innovative methods, strategies, curricula, instructional materials, instructional programs, personnel development, or other techniques to meet the special educational needs of eligible children, in general, or of eligible children from particular areas of the world;

(2) Examination of the extent to which various projects effectively meet the special educational needs of eligible children; or

(3) Dissemination through national or regional centers, curriculum materials or exemplary practices that meet the special educational needs of eligible children.

(b) The Secretary may, through a notice published in the FEDERAL REGISTER, select specific activities for funding from among those listed in paragraph (a) of this section to respond to the changing national needs for educating eligible children in general or for educating eligible children from particular areas of the world.

(Sec. 412(d)(1) of the Immigration and Nationality Act, as amended, and 20 U.S.C. 3474(a))

Subpart C-How Does One Apply for a Grant or a Subgrant Under the State-Administered Program and

the Development and Dissemination Projects Program?

§ 538.20 What documents does the State submit to receive a grant?

To receive a grant, an SEA shall submit to the Secretary an application containing the following:

80-113 0-82——12

(a) A count of the number of eligible children in the State, as required in § 537.21.

(b) A program plan that includes

(1) A description of the SEA's method of counting children eligible for assistance under this program;

(2) A brief description of the services to be provided for those children; and (3) A brief description of the SEA's plan for administering, monitoring, and evaluating the program.

(c) The following assurances:

(1) An assurance that the SEA will make subgrant awards to LEAS or consortia of LEAS in the State within 60 days of the receipt of the grant award.

(2) An assurance that the SEA will not disapprove in whole or in part an application submitted by an LEA for a subgrant without first affording the LEA a hearing according to the provisions in EDGAR (34 CFR 76.401(d)).

(3) The assurances required in EDGAR (34 CFR 76.101(e)).

(Sec. 412(a)(4) of the Immigration and Nationality Act, as amended, and 20 U.S.C. 347(a))

§ 538.21 How is the number of eligible children determined?

(a) On a date specified by the Secretary through a notice published in the FEDERAL REGISTER, an SEA shall count the number of eligible children enrolled in public and nonprofit private schools in each LEA, who have been admitted into the United States

(1) Less than one year;
(2) One to two years;
(3) Two to three years; or
(4) Three to four years.

(b)(1) For each category in paragraph (a) of this section, the SEA shall count the number of children enrolled at the elementary school level and the number enrolled at the secondary school level.

(2) For the purpose of this count(i) Children who are "enrolled at the elementary school level" means children in grades K-6; and

(ii) Children who are "enrolled at the secondary school level" means children in grades 7-12.

(c) The SEA identifies for each category in paragraphs (a) and (b) of this section the number of Indochinese

children and eligible children with another national origin.

(Sec. 412(d)(1) of the Immigration and Nationality Act, as amended, and 20 U.S.C. 3474(a))

§ 538.22 To what extent must a State provide educational services to eligible children enrolled in nonprofit private schools?

(a)(1) The SEA shall provide opportunities for eligible children enrolled in nonprofit private schools to receive educational services under this program.

(2) The requirements which must be met by an SEA with respect to eligible children enrolled in nonprofit private schools are contained in EDGAR (34 CFR 76.651-76.662).

(b) If an LEA is unwilling or unable to provide educational services to eligible children enrolled in nonprofit private elementary and secondary schools, an SEA

(1) Arranges through a subgrant, contract, or cooperative agreement with a public or nonprofit private agency, organization, or institution for the provision of services to those children; or

(2) Provides services directly to those children.

(c) If a State is prohibited by law from providing educational services to children enrolled in nonporofit private elementary and secondary schools, or if the Secretary determines that an SEA is unwilling or has substantially failed to provide educational services on an equitable basis to eligible children enrolled in nonprofit private schools, the Secretary may

(1) Proportionally reduce the funds granted to the State; and

(2) Arrange for other means of providing services to those children. (20 U.S.C. 3474(a))

§ 538.23 When does a State submit its application for a grant?

To be eligible for funds, an SEA must transmit its application in accordance with the application notice published in the FEDERAL REGISTER that establishes a deadline for the transmittal of State applications.

(20 U.S.C. 3474(a))