Title I, Part D Nonregulatory Guidance Local Agency Programs For Delinquent and At-Risk Youth (Part D, Subpart 2)

K-1. How are SEA Subpart 2 allocations calculated?

Unlike Subpart 1, which provides a separate allocation to SEAs, the ESEA requires an SEA to retain a portion of its Title I, Part A allocation for the Subpart 2 program. (ESEA section 1402(b)).

The Department calculates Subpart 2 allocations for each State based on the number of children and youth aged 5 to 17 who reside in locally operated institutions for delinquent children and youth. (ESEA section 1124(c)(1)(B)). An SEA may not include children or youth in this count that (1) have been included in the SEA’s Subpart 1 count or (2) live in Federally operated institutions. (ESEA section 1124(c)(1)(B)). The caseload count must be for 30 consecutive days, at least one day of which is in October (October caseload count). (ESEA section 1124(c)(4)(B)). The Title I, Part A allocation tables that the Department provides to each SEA show the specific amount of Title I, Part A funds that the Department allocates for Subpart 2 purposes.

K-2. Based on the October caseload count used by the Department, how should the SEA report the count of children and youth in a locally operated institution where some children or youth are considered neglected, and others are considered delinquent?

For context, this question generally arises because in the same report through which an SEA provides the Department with the counts of children and youth in locally operated institutions for delinquent children and youth, an SEA also reports counts of children and youth in locally operated institutions for neglected children and youth (neglected count). The neglected count does not generate Subpart 2 funds; rather, it generates Title I, Part A funds for the LEA in which the local facility for neglected children and youth is located, triggering the application of a requirement in ESEA section 1113 for the LEA to provide Title I, Part A services to these children and youth.

An SEA must report all children and youth who reside in the same facility as either “neglected” or “delinquent”; it may not report some students as neglected and others as delinquent An institution for “neglected or delinquent” students is a public or private residential facility, other than a foster home, that is operated for the care of children and youth who have been committed to the institution or voluntarily placed in the institution under applicable State law due to abandonment, neglect, or death of their parents or guardians, or a public or private residential facility for the care of children and youth who have been adjudicated to be delinquent or in need of supervision. (ESEA section 1432(4)).

To determine whether an institution serving both neglected and delinquent children and youth is most appropriately categorized as a delinquent or a neglected institution, an SEA should look at the purpose of the institution. In doing so, the SEA should consider a variety of factors including (1) whether the facility primarily serves delinquent children and youth, (2) the purpose of the facility as reflected in its charter, and (3) other relevant information such as statements on the facility’s website regarding its purpose. For example, if the majority of children and youth served in that institution are considered neglected because they were committed to the institution or voluntarily placed in the institution under applicable State law due to abandonment, neglect, or death of their parents or guardians, all of the children and youth in that institution should be counted as neglected. The SEA should continue to count all of the children and youth in such an institution as neglected unless its charter and purpose change. It is important that the SEA be consistent in how it reports these data every year. A change in an institution’s categorization without a clear change in purpose would improperly affect the LEA eligibility and allocations under Title I, Part A formulas.

The NDTAC Tip Sheet, Identifying Neglected and Delinquent Institutions with Eligible Children to be Included in the Annual Count, provides additional information on how to determine whether a facility is neglected or delinquent.

K-3. May an SEA include in the local count of children and youth it submits to the Department any out-of-State children and youth who are residing in locally operated institutions for delinquent children and youth or in adult correctional facilities during the 30 consecutive day count period?

Yes. The count is based on the October caseload count of any children or youth in the facility, regardless of the child’s or youth’s State of origin.

L-1. How does an SEA make Subpart 2 subgrants to LEAs?

From Title I, Part A funds retained by the State for Subpart 2 purposes, the SEA awards subgrants to eligible LEAs with high numbers or percentages of children and youth residing in locally operated correctional facilities, or community day programs for delinquent children and youth not operated by the State. (ESEA section 1422(a)).

The SEA has the option of awarding subgrants to eligible LEAs by formula or through a competitive grant process. The Department encourages SEAs to consider the needs of their State in selecting the means of awarding subgrants under Subpart 2. NDTAC has provided several trainings for SEAs on factors to consider in making this determination. If an SEA distributes funds through a formula, it may allocate funds proportionately among the eligible LEAs based on each LEA’s proportionate share of children and youth in correctional facilities or delinquent institutions, or it may choose to use a different formula for distributing funds to LEAs. If an SEA chooses to award Subpart 2 subgrants on a competitive basis, it may establish criteria or priorities (or both), consistent with State requirements for awarding subgrants. In either case, the SEA must develop procedures for determining and notifying LEAs within the State that they are eligible to apply for and receive Subpart 2 funds. (ESEA section 1422(c)). The Department encourages an SEA to consider how its application process can prioritize the State’s areas of greatest need through setting priorities, emphasizing key requirements, and requiring specific details in program narratives and budgets.

More detail about these steps is provided in subsequent questions.

Step 1: Identify LEAs that are potentially eligible by virtue of having a locally operated correctional facility, including community day programs that serve delinquent children and youth, within their boundaries (see question L-2).

Step 2: Among potentially eligible LEAs, the SEA identifies the data it will use to determine which of these LEAs has high numbers or percentages of children and youth residing in locally operated correctional facilities or attending community day programs for delinquent children and youth (see question L-3 and L-4).

Step 3: Using the data from Step 2, the SEA identifies eligible LEAs (i.e., those LEAs with high numbers or percentages of children and youth residing in locally operated correctional facilities or attending community day programs for delinquent children and youth) (see question L-3 and L-4).

Step 4: An SEA determines subaward amounts through a formula using the data from Step 3 or through a competition among interested LEAs identified in Step 3.

L-2. What is a locally operated correctional facility?

A locally operated correctional facility is a facility in which persons are confined as a result of a conviction for a criminal offense, including persons under 21 years of age. The term also includes a local public or private institution and community day program or school not operated by the State that serves delinquent children and youth (i.e., children and youth adjudicated to be delinquent or in need of supervision). (34 C.F.R. § 200.90(c)). Please note that the average length of stay requirement for institutions for delinquent children and youth only applies to Subpart 1.

L-3. Does an SEA have discretion in determining what constitutes a high number or percentage of children and youth residing in locally operated correctional facilities?

Yes, the SEA has discretion in defining what represents a high number and a high percentage. The Department encourages the SEA to establish both what constitutes a “high number” and a “high percentage” so that small and large LEAs have opportunities to apply for the funding.

For example, an SEA might choose to aggregate the number of children and youth residing in locally operated correctional facilities and institutions, community day programs, and schools that serve delinquent children and youth across the State and divide this by the numbers of LEAs containing such institutions or facilities. Any LEA with a number higher than the State average, or a minimum number established by the SEA, could be considered to have a “high number.” In determining what represents a “high percentage,” an SEA might, for example, consider an LEA in which the locally operated correctional facilities and institutions, community day programs, and schools that serve delinquent children and youth serve children and youth totaling more than 10 percent of the LEA’s total school-age population as having a high percentage.

L-4. In making subgrants to LEAs, must an SEA use the same data the Department used to determine Subpart 2 allocations?

No. An SEA is not required to use the same data for purposes of making subgrants. As noted above, in allocating Subpart 2 funds to States, the Department uses an October caseload count of children and youth living in locally operated institutions for delinquent children and youth. However, when determining whether an LEA has a high number or percentage of children and youth residing in locally operated correctional facilities and determining Subpart 2 subgrant amounts, an SEA may use other data, such as the number of children and youth participating in locally operated community day school programs and schools not operated by the State that serve children and youth who are delinquent and who do not live in a facility.

M-1. How does an LEA apply to the SEA for funds?

In general, to receive Subpart 2 funds, each eligible LEA must submit an application to the SEA that includes the information required in ESEA section 1423. However, if an SEA uses a consolidated local plan or application under ESEA section 8305, the SEA may determine which of the elements in ESEA section 1423 are necessary for an LEA to include in its consolidated local plan or application. Regardless, the SEA should collect sufficient information to ensure that all of the requirements of the program will be carried out, such as the population served, the activities to be funded, and any other relevant information.

If the SEA awards funds competitively or does not use a consolidated local plan or application, the LEA application must include:

1. A description of the program to be assisted;
2. A description of formal agreements, regarding the program to be assisted, between—
   A. The LEA; and
   B. Correctional facilities and alternative school programs serving children and youth involved with the juvenile justice system, including such facilities operated by the Secretary of the Interior and Indian Tribes;
3. As appropriate, a description of how participating schools will coordinate with facilities working with delinquent children and youth to ensure that such children and youth are participating in an education program comparable to one operating in the local school such youth would attend (i.e., an education program of similar quality and scope);
4. A description of the program operated by participating schools to facilitate the successful transition of children and youth returning from correctional facilities and, as appropriate, the types of services that such schools will provide such children and youth and other at-risk children and youth;
5. A description of the characteristics (including learning difficulties, substance abuse problems, and other special needs) of the children and youth who will be returning from correctional facilities and, as appropriate, other at-risk children and youth expected to be served by the program, and a description of how the school will coordinate existing educational programs to meet the unique educational needs of such children and youth;
6. As appropriate, a description of how schools will coordinate with existing social, health, and other services to meet the needs of students returning from correctional facilities, at-risk children or youth, and other participating children or youth, including prenatal health care and nutrition services related to the health of the parent and the child or youth, parenting and child development classes, child care, targeted reentry and outreach programs, referrals to community resources, and scheduling flexibility;
7. As appropriate, a description of any partnerships with institutions of higher education or local businesses to facilitate postsecondary education and workforce success for children and youth returning from correctional facilities, such as through participation in credit-bearing coursework while in secondary school, enrollment in postsecondary education, participation in career and technical education programming, and mentoring services for participating students;
8. As appropriate, a description of how the program will involve parents and family members in efforts to improve the educational achievement of their children or youth, assist in dropout prevention activities, and prevent the involvement of their children or youth in delinquent activities (please see questions O-11 and O-12 for related resources);
9. A description of how the program under this subpart will be coordinated with other Federal, State, and local programs, such as programs under Title I of the Workforce Innovation and Opportunity Act and career and technical education programs serving at-risk children and youth;
10. A description of how the program will be coordinated with programs operated under the Juvenile Justice and Delinquency Prevention Act of 1974 and other comparable programs, if applicable;
11. As appropriate, a description of how schools will work with probation officers to assist in meeting the needs of children and youth returning from correctional facilities;
12. A description of the efforts participating schools will make to ensure correctional facilities working with children and youth are aware of a child’s or youth’s existing IEP; and
13. As appropriate, a description of the steps participating schools will take to find alternative placements for children and youth interested in continuing their education but unable to participate in a traditional public school program.
    (ESEA section 1423).

M-2. May an agency other than an LEA apply to the SEA for Subpart 2 funds?

No. Only LEAs are eligible to apply to the SEA. An LEA, however, once it receives a Subpart 2 subgrant from the SEA, may then enter into an arrangement with another entity—either through a contract, subgrant, or cooperative agreement—to provide services. (ESEA section 1424(b)). In such instances, the LEA must exercise administrative control and assume responsibility for monitoring to ensure compliance with applicable statutory and regulatory requirements.

N-1. How does the LEA determine the eligibility of children and youth to receive services under Subpart 2?

All children and youth age 21 and younger who reside in a locally operated correctional facility are eligible to be served. In addition, children and youth returning from correctional facilities to attend a school in the LEA are also eligible for Subpart 2 services. Finally, the LEA may also serve other at-risk children and youth in local schools. (See ESEA sections 1421 and 1424; 34 C.F.R. § 200.90(a)). (Section O provides more detail about the allowable uses of Subpart 2 funds.)

N-2. What does it mean to be at-risk?

The term “at-risk,” when used with respect to a child, youth, or student, means a school-aged individual who is at-risk of academic failure, dependency adjudication, or delinquency adjudication; has a drug or alcohol problem; is pregnant or is a parent; has come into contact with the juvenile justice system or child welfare system in the past; is at least one year behind the expected grade level for the age of the individual; is an English learner; is a gang member; has dropped out of school in the past; or has a high absenteeism rate at school. (ESEA section 1432(2)). This may include students who are receiving services under other Federal, State, or local programs, such as students identified as homeless or migratory students.

N-3. May children and youth who were not included in the annual count receive services under Subpart 2?

Yes. Statutory and regulatory requirements dictate which children, youth and facilities are eligible to be included in the annual counts, but LEAs have considerable flexibility and discretion in determining which students may be served with Subpart 2 funds. In many instances, this means that the students counted will not be the same students receiving services. For example, at-risk children and youth who do not reside in locally operated correctional facilities would not be included in the annual count but could be served with Subpart 2 funds in a local school that is part of the eligible LEA.

N-4. May an LEA use Subpart 2 funds to serve a particular category of at-risk youth, such as English learners or youth who are immigrants, rather than other categories of youth, without documenting that those children and youth have the greatest need?

Yes. An LEA may target Subpart 2 funds to meet the needs of one or more categories of children and youth who are at-risk without documenting that such a category or categories have greater needs than other categories. However, depending on SEA application requirements, an LEA might be required to explain its rationale for choosing to serve a particular category of children or youth who are at-risk.

N-5. May an LEA provide services to delinquent children and youth in community day programs under Subpart 2?

Yes. 34 C.F.R. § 200.91(c) defines a “locally operated correctional facility” to include a local public or private institution and community day program or school not operated by the State that serves delinquent children and youth. As States are moving towards increasing home and community-based placements rather than residential placements, the Department encourages SEAs and LEAs to consider how youth in such placements can be served, consistent with the statutory requirements of this program. In many areas, juvenile courts are prioritizing nonresidential placements where adjudicated youth must attend a community-based program while continuing to live at home. These types of programs include day treatment, reporting centers, and intensive supervision programs. LEAs should identify and address gaps in the supports offered at these facilities, such as college and career counseling, family engagement activities, and services and supports from the LEA homeless liaison, as well as educational programming such as career and technical education, dual enrollment or college preparatory coursework, and fine arts.

O-1. What are allowable uses of Subpart 2 funds?

An LEA may use Subpart 2 funds for—

1. Programs that serve children and youth returning to local schools from correctional facilities, to assist in the transition of such children and youth to the school environment and help them remain in school in order to complete their education (please see questions O-3, O-5, O-6, O-8, O-11, and O-12 for related resources);
2. Dropout prevention programs which serve at-risk children and youth;
3. The coordination of health and social services for such individuals if there is a likelihood that the provision of such services, including child care, drug and alcohol counseling, and mental health services, will improve the likelihood such individuals will complete their education;
4. Special programs to meet the unique academic needs of participating children and youth, including career and technical education, special education, career counseling, curriculum-based youth entrepreneurship education, and assistance in securing student loans or grants for postsecondary education;
5. Programs providing mentoring and peer mediation;
6. Programs for at-risk Indian children and youth, including such children and youth in correctional facilities in the area served by the LEA that are operated by the Secretary of the Interior or Indian Tribes; and
7. Pay for success initiatives.
   (ESEA section 1424(a)).

O-2. What are an LEA’s obligations with respect to providing transitional and supportive programs for students returning from local correctional facilities

Transitional and supportive programs operated in LEAs receiving Subpart 2 funds must be designed primarily to meet the transitional and academic needs of students returning to LEAs or alternative education programs from correctional facilities, and services to students at-risk of dropping out of school must not have a negative impact on meeting such transitional and academic needs of the students returning from correctional facilities. (ESEA section 1422(d)). LEAs may use their Subpart 2 funds to support a point of contact to assist eligible youth and their families with timely re-enrollment, transfer of records, coordination of services, academic support, monitoring progress, and planning for postsecondary education and employment.

An LEA that serves a school operated by a locally operated correctional facility is not required to operate a program of support for children and youth returning from such school to a school that is not operated by a correctional facility but served by the LEA if more than 30 percent of the children and youth attending the school will reside outside the boundaries served by the LEA upon leaving the facility. (ESEA section 1422(b)).

O-3. What types of student information should be shared between LEAs and local facilities to support student’s educational progress?

The educational records of students who transfer between LEAs and placements in local facilities should include all information necessary to provide the student with continuity in their education. For example, records may include transcripts with credits attempted and earned, grades, education plans (including IEPs and 504 plans), and other relevant academic information. This may include information from child welfare agencies when children have been involved in both systems. (For additional information see G-2.)

O-4. What are the program implementation requirements for locally operated correctional facilities under Subpart 2?

Each correctional facility must:

1. Where feasible, ensure that educational programs in the correctional facility are coordinated with the student’s home school, particularly with respect to a student with an IEP under part B of the IDEA (please also see related question O-13);
2. If the child or youth is identified as in need of special education services while in the correctional facility, notify the local school of the need of the child or youth; 
3. Where feasible, provide transition assistance to help the child or youth stay in school, including coordination of services for the family, counseling, assistance in accessing drug and alcohol abuse prevention programs, tutoring, and family counseling;
4. Provide support programs that encourage children and youth who have dropped out of school to reenter school and attain a regular high school diploma once their term at the correctional facility has been completed, or provide such children and youth with the skills necessary to gain employment or seek a regular high school diploma or its recognized equivalent;
5. Work to ensure that the correctional facility is staffed with teachers and other qualified staff who are trained to work with children and youth with disabilities taking into consideration the unique needs of such children and youth;
6. Ensure that educational programs in the correctional facility are designed to assist students to meet the challenging State academic standards;
7. To the extent possible, use technology to assist in coordinating educational programs between the correctional facility and the community school;
8. Where feasible, involve parents in efforts to improve the educational achievement of their children and youth and prevent the further involvement of such children and youth in delinquent activities;
9. Coordinate funds received under this subpart with other local, State, and Federal funds available to provide services to participating children and youth, such as funds made available under title I of the Workforce Innovation and Opportunity Act, and career and technical education funds;
10. Coordinate programs operated under this subpart with activities funded under the Juvenile Justice and Delinquency Prevention Act of 1974 and other comparable programs, if applicable;
11. If appropriate, work with local businesses to develop training, curriculum-based youth entrepreneurship education, and mentoring programs for children and youth;
12. Upon the child’s or youth’s entry into the correctional facility, work with the child’s or youth’s family members or guardians and the LEA that most recently provided services to the child or youth (if applicable) to ensure that the relevant and appropriate academic records and plans regarding the continuation of educational services for such child or youth are shared jointly between the correctional facility and LEA in order to facilitate the transition of such children and youth between the LEA and the correctional facility; and
13. Consult with the LEA for a period jointly determined necessary by the correctional facility and LEA upon discharge from that facility, to coordinate educational services so as to minimize disruption to the child’s or youth’s achievement.
    (ESEA section 1425).

O-5. May Subpart 2 funds be used for mentoring programs?

Yes. ESEA section 1424(a)(5) authorizes the use of Subpart 2 funds to provide mentoring. For additional information and resources on effective mentoring programs, see question G-3.

O-6. How can Subpart 2 funds be used for dropout prevention programs for at-risk children and youth?

LEAs may use Subpart 2 funds to support dropout prevention and intervention programs for at-risk youth if doing so does not have a negative impact on meeting the transitional and academic needs of students returning to LEAs from correctional facilities. (ESEA section 1422(d)).

LEAs should consider programs that offer students multiple evidence-based pathways to success that are personalized to their unique needs and circumstances. Programs may include, but are not limited to, the ability to earn a diploma through accelerated learning, dual enrollment or early college programs; career and technical education; and summer learning and enrichment. LEAs should also offer the opportunity to earn a GED or recognized equivalent when earning a regular high diploma is not the best choice for the student, specifically those who are significantly over-aged and under-credited. As noted in this May 2024 Dear Colleague letter, youth in correctional facilities should also be connected to career and technical education programs including those programs that offer certification, such as manufacturing technicians, machinists, and medical assistants. This will enable youth served in Title I, Part D programs to acquire valuable education and workforce credentials and increase employability upon transition back to their communities. LEAs should assess students for other challenges that may impact successful learning, such as special education needs, language barriers, or undiagnosed mental health needs. Subpart 2 funds may support these needs if the expenditure falls under one of the allowable uses in ESEA section 1424(a), although LEAs should also consider other available resources to address these needs. Resources on dropout prevention and intervention may be found at the What Works Clearinghouse.

O-7. To what extent may Subpart 2 funds support online programs for virtual learning?

Online programs are an acceptable use of funds for Subpart 2 if the expenditure falls under one of the allowable uses of funds in ESEA section 1424(a). The Department encourages consideration of whether there is sufficient data to support their need and if the programs are of high quality and have an evidence base showing that they are likely to lead to successful outcomes for students. The Department’s Ed Tech Evidence Toolkit may be a helpful resource to support educational leaders with using evidence to inform the selection of educational technology programs in schools. Additional resources on supporting educational technology, including leveraging other Federal funds, can be found at https://tech.ed.gov/district-and-state-leaders/.

O-8. To what extent may Subpart 2 funds support access to advanced coursework?

Subpart 2 funds may be used to meet the unique academic needs of participating children and youth, which may include advanced coursework. (ESEA section 1424(a)(4)). This could include college-level academic courses, advanced career and technical education courses that count for credit at vocational colleges and/or trade schools, and high school-level academic courses that count for credit at liberal arts or community colleges. Subpart 2 funds may also be used for dual or concurrent enrollment programs, college and career pathways, and educational opportunities that lead to an industry-recognized credential.

O-9. May Subpart 2 funds be used for administration or program coordination at the LEA level?

Yes. Subpart 2 funds may be used for program administration or program coordination if such activity is necessary and reasonable for the performance of the Subpart 2 program and allocable thereto. (Uniform Guidance, 2 C.F.R. § 200.403(a)). “A cost is reasonable if, in its nature and amount, it does not exceed that which would be incurred by a prudent person under the circumstances prevailing at the time the decision was made to incur the cost” (Uniform Guidance, 2 C.F.R. § 200.404).

Moreover, consideration should be given to the relative impact of the expenditure given the amount of the grant and number of students who would benefit. Such analysis is necessarily context specific. For example, under these circumstances, funds could be used to hire an administration staff person to facilitate student records transfer.

O-10. May Subpart 2 funds be used by an LEA to support training in career and technical skills and GED prep in an independently operated institution for youth who are delinquent?

Yes, so long as the program application is approved by the LEA and meets the statutory requirements in Subpart 2.

O-11. May an LEA use Subpart 2 funds to support alternative programs for children and youth who are at-risk?

Yes. In addition to supporting community day programs for delinquent children and youth (see question N-5), Subpart 2 funds may also support children and youth who are at-risk as defined in section 1432(2) of the ESEA. To ensure that Subpart 2 funds are appropriately used for LEA-operated alternative programs for children and youth who are at-risk, the SEA may require an LEA to describe the procedures it uses to select participating schools and children and youth. Although the statute makes no specific provisions for selecting schools in which an LEA uses Subpart 2 funds to serve children and youth who are at-risk, an SEA that awards Subpart 2 funds on a competitive basis may prioritize subgrants to LEAs that allocate funds based on need, which could reflect concentration of poverty, dropout rates, or some other reasonable objective indicator of educational need. The SEA could also prioritize subgrants to LEAs that require participating schools to use evidence-based interventions to address the needs of at-risk students served with Subpart 2 funds.

O-12. How may Subpart 2 programs effectively coordinate with other Federal and State programs that serve high-need youth?

There are many ways that an LEA receiving a Subpart 2 grant can ensure effective coordination with other programs serving high-need youth and leverage existing funding to foster cross-system collaboration. See question G-5 for examples and resources that address this question.

O-13. What resources are available to support LEAs in working with parents and families?

Family engagement activities are most effective when they are linked to learning, focus on building relationships between home and school, build the development of the whole child, are group activities, and allow for interaction. Educational programs housed within facilities should build programs that are system-wide, integrated into the program’s structures and processes, and sustainable.

Facilities should focus on a range of activities that engage families from the time a student enters the facility until the student transitions to a new program. Many of the same types of activities offered to families in a regular public school may be adapted to meet the needs of the families of children and youth in facilities. However, facilities should be mindful that families may not be located near the facility where their child is currently staying and should offer virtual opportunities for families that are unable to travel. Facilities are encouraged to use NDTAC’s Family Engagement Toolkit for ideas and templates. Suggested activities include:

• A school website with links to parent/family handbooks, staff bios, curriculum, and other activities that students may participate in, including athletics, career and technical education, and fine arts;
• A welcome letter and periodic newsletters that are emailed or printed and mailed to families that may not have internet access, including communications written in a language that families can understand;
• On-site and virtual family engagement events that may include resources for families and students, opportunities for families to meet with teachers, and opportunities for families to tour the school building or classrooms;
• Family engagement activities and information focused on the social-emotional development of their child/youth;
• Involving families in their child’s transition back to the home community by inviting them to participate in meetings, providing them with resources, providing a copy of their school records, and connecting families to community-based resources.

O-14. How can LEAs involve parents and family members in efforts to improve the educational achievement of their children and prevent the involvement of their children in delinquent activities?

Section 1423(8) of the ESEA requires each LEA to include in its application, as appropriate, a description of how it will “involve parents and family members in efforts to improve the educational achievement of their children, assist in dropout prevention activities, and prevent the involvement of their children in delinquent activities.” Families of students who are residing in locally operated correctional facilities should have the same opportunities to participate in the LEA’s family engagement activities as the families of other students. However, LEAs should be mindful that the families of these students may not live within the LEA and should provide these families with opportunities to participate virtually. NDTAC’s Family Engagement Tool Kit provides guidance and helpful templates for LEAs.

Please note that LEAs have an obligation to ensure meaningful communication with parents and guardians who have limited English proficiency, including providing information about its programs, services, and activities in a language that parents can understand. Additionally, under Section 504 and Title II of the Americans with Disabilities Act, an LEA must ensure that communications with individuals with disabilities are as effective as communications with others (28 C.F.R. § 35.160 and 34 C.F.R. § 104.4(b)(1)(iii)).

If the students receive their education within the LEA, families should be invited to participate in all the regular activities offered at their child’s school. If students are educated within the facility, LEAs should tailor activities accordingly (see question O-11 for more information).

O-15. What are the responsibilities of an LEA in ensuring that children and youth in locally operated correctional facilities are being identified and served under IDEA, Part B?

An LEA that submits a Subpart 2 plan under section 1423 of the ESEA must describe the efforts participating schools will make to ensure that correctional facilities working with children and youth are aware of a student’s existing IEP (see question M-1). The LEA is required to implement the IEPs of students with disabilities that have an existing IEP or hold an IEP team meeting to modify its contents. (34 C.F.R. § 300.323(e)). An LEA that is responsible for providing educational services to children and youth who are housed in a locally operated correctional facility is also responsible for identifying, evaluating, and serving those students under IDEA, Part B. (34 C.F.R. §§ 300.111(a)(1)(i), 300.300(a), 300.301, 300.323).

These services include the provision of timely evaluations, including the continuation of evaluations that may have begun in another LEA or in a correctional facility, the provision of a free and appropriate public education (FAPE), and the provision of such services in the least restrictive environment (LRE). (34 C.F.R. §§ 300.101, 300.114, 300.301(c)(1)).

LEAs should work with SAs and local delinquent facilities to transfer records, including special education records and evaluation information, in a timely manner in accordance with State law. We encourage LEAs to refer to the Department’s Dear Colleague letter issued on December 5, 2014.

O-16. How may an LEA coordinate its Subpart 2 services with Title I, Part A?

ESEA section 1113(c)(3)(A)(iii) and 34 C.F.R. § 200.77(a)(3) allow an LEA, where appropriate, to reserve Title I, Part A funds that are reasonable and necessary to provide services designed to improve the academic achievement of children and youth in local institutions for delinquent children and youth and neglected or delinquent children and youth in community day programs. The flexibility to reserve Title I, Part A funds for this purpose enables an LEA to supplement services that it already supports with Subpart 2 funds or add additional services under Title I, Part A that it is not already providing under Subpart 2.

Additionally, if a local institution for delinquent children and youth or a community day program meets the definition of “elementary school” in ESEA section 8101(19) or “secondary school” in ESEA section 8101(45), the school may be eligible to receive Title I, Part A funds from its LEA under ESEA section 1113. (See: https://www.ed.gov/sites/ed/files/2022/02/Within-district-allocations-FINAL.pdf) This is another way that children and youth in local correctional facilities and institutions for youth who are delinquent can receive support from Title I, Part A, in addition to Subpart 2.

O-17. May an LEA use Subpart 2 funds to serve children and youth who reside in a local institution for neglected children and youth?

It depends. For context, ESEA section 1113(c)(3)(A) and 34 C.F.R. § 200.77(a)(2) require an LEA to reserve Title I, Part A funds to provide services comparable to those provided to children and youth in Title I, Part A schools to children and youth in local institutions for neglected children and youth. This means that there is already a different source of Federal funds other than Subpart 2 (i.e., Title I, Part A) that the ESEA requires an LEA to use to support these children and youth.

With respect to Subpart 2, as described above, an LEA must use Subpart 2 funds to serve children and youth in locally operated correctional facilities and children and youth transitioning from these facilities to the LEA’s schools. If, after making Subpart 2 funds available to serve these children and youth, the LEA has additional Subpart 2 funds remaining, it may use them to provide services to at-risk children and youth enrolled in the LEA. If a child or youth who resides in a local facility for neglected children and youth is enrolled in the LEA and considered at-risk (see “at-risk” definition above), the LEA may provide the child or youth with Subpart 2 services, which would be in addition to services the child or youth receives under Title I, Part A. If, however, a child or youth who resides in a local facility for neglected children and youth is not enrolled in the LEA, it would not be allowable for the LEA to provide the child or youth with Subpart 2 services. The LEA must, however, still provide the child or youth with Title I, Part A services as described in the previous paragraph.

P-1. What funds are available for an SEA to administer Subpart 2?

An SEA may use funds it reserves under ESEA section 1004 from its Title I, Parts A, C, and D (Subpart 1) awards to administer Subpart 2. If an SEA consolidates funds reserved under ESEA section 1004 with other State administrative funds under ESEA section 8201, the SEA may use consolidated State administrative funds to administer Subpart 2.

P-2. What options do an LEA and SEA have if a facility receiving services with Subpart 2 funding closes in the middle of a grant period?

The LEA should work with the SEA to identify other allowable uses of the funds, which might include support for another facility that is eligible to receive Subpart 2 services within the LEA or providing additional services to other eligible children and youth served by the LEA (e.g., children and youth transitioning from a local correctional facility to the LEA’s schools).

If an LEA is unable to identify other allowable uses of funds, it should inform the SEA so that the SEA can distribute the unneeded funds to other LEAs. An SEA has the flexibility to determine how this redistribution will occur. For example, an SEA could proportionally increase the subgrant amount provided to all participating LEAs. Alternately, an SEA could establish special procedure and distribution criteria and make the additional funds available to eligible LEAs that meet those criteria. An SEA may not, however, allocate any portion of the LEA funds for use under Subpart 1 (see question P-5).

P-3. What may an LEA do if it has Subpart 2 funds remaining at the end of the year?

Under GEPA section 421(b), funds made available for a given fiscal year must be obligated by both the SEA and LEA within 27 months of the date the Department awards funds to the SEA. Because SEAs may make Subpart 2 subgrants by formula or competitively, an SEA may choose to establish a period of availability for its subgrants, not to exceed 27 months, regardless of whether it makes its Subpart 2 subgrants by formula or competitively. If an SEA establishes a shorter period of availability for its Subpart 2 subgrants, it may choose to establish a process by which LEAs may apply to the SEA to carry over the funds from one fiscal year to the next.

P-4. Is an LEA that received Subpart 2 funds in the previous year entitled to receive an allocation based on a “hold-harmless” amount in the current year?

No. The hold-harmless provisions of Title I, Part A do not apply to Subpart 2 subgrants received by an LEA from the SEA.

P-5. Can Subpart 2 funds be reallocated to Subpart 1?

No. Subpart 2 funds may only be awarded to LEAs, and Subpart 1 funds may only be awarded to SAs. They cannot be reallocated to one another. For example, if a facility changes from an SA to a local correctional facility, the source of funding for that facility may not be changed during the grant award year from Subpart 1 to Subpart 2. If the State experiences a change in the number of students served by LEAs compared to SAs, this change will be reflected in the next year’s annual count.

P-6. Does the Subpart 2 program include a supplement not supplant provision

There is no supplement, not supplant provision that applies to Subpart 2. However, the purpose of Title I, Part D funding is to support programs and services that are supplemental to the regular education program and meant to address the specific needs of delinquent and at-risk children and youth.

P-7. What are the monitoring responsibilities of SEAs and LEAs under Subpart 2?

SEAs and LEAs are required to monitor their subgrantees’ implementation of the LEA program funded under Subpart 2. (2 C.F.R. § 200.332(e)). Additionally, LEAs are responsible for monitoring every facility or institution with which they have contracted for services to ensure that the facility or institution is carrying out its responsibilities as outlined in its formal agreement and is complying with all applicable statutory and regulatory requirements.

P-8. How may SEAs hold LEAs accountable for their use of Subpart 2 funds?

In accounting for how effectively Subpart 2 funds are used by the LEA, an SEA may:

1. Reduce or terminate funding for LEA-based projects supported with Subpart 2 funds if the projects do not show progress in the number of children and youth attaining a regular high school diploma or its recognized equivalent; and
2. Require that local correctional facilities and institutions for delinquent children and youth demonstrate, after receiving assistance under Subpart 2 for 3 years, that there has been an increase in the number of children and youth returning to school, attaining a regular high school diploma or its recognized equivalent, or attaining employment after they are released.
   (ESEA section 1426).