structional staff members employed through the use of such funds may, at the option of the local educational agency, be excluded from determinations under this section. For the purpose of this section a State or locally funded program for educationally deprived children shall be considered to be similar to programs under Title I if (i) the participating children are “educationally deprived" children as defined in § 116.2 of Part 116; (ii) the program is based on performance objectives related to educational achievement and provides supplementary services designed to meet the special educational needs of those particular children; (iii) the program is evaluated in a manner consistent with those performance objectives, and (iv) for purposes of determining compliance with clauses (i)-(iii) the local educational agency is separately accountable to the State educational agency for any State or local funds expended for such program.

(20 U.S.C. 241e(a) (1), and (3), 244(17); House Rept. 93-805, p. 18 (1974), Senate Rept. No. 93-1026, p. 147 (1974))

(k) Schools with 100 or less children. A school with an enrollment of 100 children or less (as of the date or dates the data required by paragraph (b) of this section are collected) shall not be included for purposes of this section, provided that, if the local educational agency operates schools of such size and corresponding grade levels both for areas to be served and areas not to be served under Title I, such agency files with the State educational agency a statement of the policies it will follow concerning the allocations of staff to such schools and the State educational agency finds that such policies are consistent with the objectives of this section.

(1) Inapplicability to certain agencies. The requirements of this section are not applicable to a local educational agency which has shown the State educational agency that it is operating only one school serving children at the grade levels at which services under Title I are to be provided or which has designated the whole of the school district as a project area in accordance with § 116a.20(d).

(1)

(m) Maintenance of records. Local educational agencies required to report under this section shall maintain, by individual schools

(i) Appropriate resource records, including records of children's enrollment;

(ii) Worksheets showing the total number of full-time instructional staff members, the full-time equivalent number of part-time instructional staff members and the total amount of State and local funds being expended for their salaries (including the prorated portions of salaries for part-time staff) less the total amount of such salaries based solely on longevity;

(iii) Appropriate records documenting the exclusions made pursuant to paragraph (j) of this section; and

(2) Such records and worksheets, demonstrating the maintenance of comparability for the entire school year, shall be filed, indexed, and maintained in such a manner that they may be readily reviewed by appropriate local, State, and Federal authorities and shall be retained in accordance with applicable record retention requirements. All such records and worksheets shall be available to the public in accordance with the provisions of § 116.35.

(n) State agency submissions. (1) By January 1 of each year, the State educational agency shall submit to the Commissioner in such form as he will prescribe, a copy of the comparability report for each local educational agency in the State which the Commissioner has determined to be in a national sample of such agencies for that year.

(2) The State educational agency shall also submit to the Commissioner by January 1 of each year, a report identifying each local educational agency that failed to meet the comparability requirement of paragraph (e) of this section on the date specified under paragraph (d) or (g) of this section and indicating for each such agency either (i) that such agency has allocated or reallocated sufficient additional resources to Title I project areas so as to come into compliance with such requirements and has filed a revised comparability report reflecting such compliance or (ii) that the State

educational agency is withholding the payment of Title I funds to the noncomplying local educational agency.

(3) A copy of each revised comparability report in such form as the Commissioner will prescribe shall be included with the State educational agency's report to be submitted by January 1.

(4) Not later than April 30, the State educational agency shall report to the Commissioner whether any noncomplying local educational agencies have come into compliance, and if so, the State educational agency shall include revised comparability reports for such local educational agencies reflecting such compliance.

(0) Local educational agencies which receive substantial Federal funds. A local educational agency receiving at least 95 percent of its funds for education from Federal sources shall not be required to meet the provisions of this section.

Subpart A-General

§ 116c.1 Applicability.

(a) Scope. The regulations in this Part govern programs and projects for which funds are provided, pursuant to section 123 of Title I of the Elementary and Secondary Education Act of 1965, as amended, to State agencies directly responsible for providing free public education for children in institutions for neglected or delinquent child. en or in adult correctional institutions, to meet the special educational needs of these children.

(b) Other applicable provisions. Assistance provided under this Part is subject to all provisions contained in Part 116 (general requirements relating to Title I of the Act) and the applicable provisions of Parts 100, 100b and 100c of this Title relating to fiscal, administrative, property management, and other matters.

28,

(c) The text of the Title I statute is contained in full in the Appendix to Part 116 of this chapter. (41 FR 42907, September 1976) (section 501(b)(1)(A) of Pub. L. 94-482 amends section 125 of the Title I statute by striking out "Except as provided in section 843 of the Education Amendments of 1974, no" and inserting in its place "No," while section 501(o) of Pub. L. 94-482 amends section 125 by striking out "State agency" both places it appears and inserting in its place "State.")

(20 U.S.C. 241c-3).

§ 116c.2 Definitions.

"Adult

correctional institution" means a facility in which persons are confined as a result of a conviction of a criminal offense, including persons under 21 years of age.

"Child" means, for the purpose of this Part, a person under 21 years of age.

"Custody" means custody as defined by State law. However, for the purposes of this Part a child who resides in an institution 24 hours a day is deemed to be in the custody of the public agency that assigned him or her to that institution.

"Institution" means either an institution for neglected children, an insti

tution for delinquent children, or an adult correctional institution.

"Institution for delinquent children" means a facility which is operated for the care of children who are in the custody of a public agency as a result of a finding under State law that they are either (a) delinquent or (b) in need of treatment or supervision after being charged with a violation of State law, and which has an average length of stay of at least 30 days.

"Institution for neglected children" means a facility (other than a foster home) which is operated for the care of children who are in the custody of a public agency as the result of a finding of neglect under State law, and which has an average length of stay of at least 30 days.

"State agency" means an agency of State government which is directly responsible for the free public education of children in institutions for neglected or delinquent children or in adult correctional institutions. (This education may be provided in schools operated or supported by the State agency or in schools under contract or other arrangement with that agency.) The term does not include an agency whose responsibility for these children is limited to the distribution of State financial assistance to other agencies which State law makes directly responsible for the free public education of these children.

(20 U.S.C. 241c-3.)

Subpart B-Amounts Available for Grants and Payments

§ 116c.3 Grants which a State agency is eligible to receive.

(a) From information supplied by a State agency, the Commissioner shall:

(1) Determine the amount that a State agency (other than the State agency for Puerto Rico) is eligible to receive under this Part for any fiscal year in accordance with the provisions of sections 123, 124, and 125 of Title I of the Act and § 116c.5; and

(2) Determine the amount available for a State agency in Puerto Rico in accordance with sections 123 and 125 of Title I of the Act and § 116c.5.

(b) The Commissioner shall inform the State educational agency of each State of the results of these determinations.

(c) For the purpose of computing an allocation under this Part, the Commissioner may not count a child who is counted in average daily attendance under the provisions of Part 116b (State Operated Programs for Handicapped Children) of this chapter.

(20 U.S.C. 241c-3.)

§ 116c.4 Amounts available for grants.

The State educational agency shall notify each State agency of the amount available to it under § 116c.3 and from that amount shall make funds available to the State agency equal to the cost of programs and projects approved by the State educational agency in accordance with the procedure prescribed by Subpart C of this Part. The amount made available to a State agency under this section shall not exceed the amount the agency is entitled to receive under § 116c.3. (20 U.S.C. 241c-3, 241g(a).)

§ 116c.5 Determination of average daily

attendance.

(a) To be counted in average daily attendance, a child must be:

(1) In the custody of the public agency that assigned him or her to an institution;

(2) One for whom a State agency is providing a free public education; and

(3) In an organized program of instruction (not beyond grade 12), at least five hours per week.

(b) Average daily attendance is computed for each institution on the basis of daily records for the number of days the organized program of instruction was in session during the most recently completed school year.

(c) For the purpose of computing average daily attendance:

(1) A child is counted as being in a full day of attendance for each day he or she attends the organized program of instruction for three (3) or more hours; and

(2) A child is counted as being in one-half (2) day of attendance for each day he or she attends the organized program of instruction for at

least one (1) hour, but less than three (3) hours.

(d) For the purpose of this section, an organized program of instruction means an educational program which consists of classroom instruction in basic school subjects such as reading, mathematics, and vocationally oriented subjects, and which is supported by other than Federal funds. Neither the manufacture of goods within the institution nor activities related to institutional maintenance are considered classroom instruction.

(20 U.S.C. 241c-3.)

Subpart C-Program Requirements

§ 116c.11 Applications.

A State agency may apply to the State educational agency for a grant or grants of Federal funds under this Part in the amount authorized by §§ 116c.3 and 116c.4 to be used to meet the special educational needs of children eligible to be counted in average daily attendance in accordance with §116c.5.

(20 U.S.C. 241c-3, 241e(a), 244(6) (B).)

§ 116c.12 Information required in applications.

The State agency shall include the following information in each application it makes to the State educational agency as authorized by § 116c.11.

(a) Institutional information. With respect to each institution at which Title I funded services are to be provided, the application must include:

(1) The name and location;

(2) The classification (i.e., adult correctional, delinquent, or neglected); (3) The total population at time of application;

(4) The total number of children at the time of application;

(5) The total number of children eligible to be counted in average daily attendance at the time of application;

(6) A description of the nature and scope of the education program currently being conducted for those children counted in paragraph (a)(5) of this section with funds other than those provided under this Part, including types of instruction, muber of children being served and number of staff

employed in each major area or component, and source of funding.

(b) Needs assessment. With respect to the educational needs of the children to be served, the application must include:

(1) A description of the procedures (including objective measures of educational achievement and special diagnostic tests) used to determine the special educational needs of the children eligible to be served, as well as a description of the additional procedures the State agency intends to employ;

(2) An analysis of the results of those procedures, including the special educational needs identified and the number of eligible children exhibiting those needs; and

(3) A summary evaluation of the effectiveness of similar past projects funded by section 123 of Title I in accomplishing their objectives.

(c) Project descriptions. With respect to the proposed project, the application must include:

(1) A statement of the educational objectives of the proposed project and the related performance criteria;

(2) A description of each service to be provided as a means of accomplishing the project's objectives;

(3) The estimated number of children to be served by age and anticipated grade placement;

(4) A description of the type and number of staff to be employed, and of any inservice training (including the type of training, frequency, and number and type of staff members who will participate in that training);

(5) A budget based on categories of expenditure prescribed by the State educational agency with appropriate detail by service and by institution;

(6) A description of the use of Title I funds for construction or equipment in accordance with 45 CFR 116.32; and

(7) A description of the procedures and instruments by which the effectiveness of the program will be evaluated, in accordance with 45 CFR 116.43(a).

(20 U.S.C. 241c-3, 241e(a), 244(6)(B).)

§ 116c.13 Criteria for the approval of applications.

A State educational agency shall approve a project for which an application has been made only if it determines that the project is of sufficient size, scope, and quality to give reasonable promise of substantial progress toward meeting the special educational needs of the children to be served. This determination may be made only upon a finding that:

(a) The application contains the information required by § 116c.12 and demonstrates compliance with all other requirements in this Part and the applicable requirements of Parts 100, 100b, 100c, and 116 of this Title;

(b) The project set forth in the application is designed:

(1) To meet the special educational needs of the children to be served, as identified in accordance with

§ 116c.12(b); and

(2) To supplement the existing programs described in accordance with § 116c.12(a)(6).

(c) The evaluation plans comply with 45 CFR 116.43 and are adequate for measuring the attainment of the objectives described in the application in accordance with § 116c.12(c)(1);

(d) No funds other than those authorized by Title I of the Act are available to provide the services proposed in the application; and

(e) The project has not been designed to meet, nor will it have the effect of meeting, the general needs of the institution, a school within the institution, the student body at large, or the needs of a specified grade within that school.

(20 U.S.C. 241c-3, 241e(a), 244(6)(B).)

116d.3 State applications.

116d.5 Designation of operating agencies. 116d.6 Participation of operating agencies. 116d.7 Supervision of programs and projects.

116d.8 Amendments to applications. 116d.9 Title and control of property. 116d.10 Allocation of funds to administrative and program functions.

116d.11 Funding of subgrantee projects; requirements for adjustment of funds not needed by subgrantee.

116d.12 Child eligibility and evidence of child eligibility.

Subpart C-Amounts Available for Grants and Payments

116d.21 Total amount available for grants. 116d.22 Entitlement. 116d.23 Payments.

116d.24 Special arrangements by the Commissioner to conduct migrant programs.

Subpart D-Program Requirements 116d.31 Use of funds and information in State application.

116d.31a Programs of instruction for preschool migratory children. 116d.32 State budgets. 116d.35 Inclusion of formerly migratory