Title I, Part D Nonregulatory Guidance State Agency Programs for Neglected and Delinquent Children (Subpart 1)

A-1. What State plan requirements apply to Subpart 1?

To receive Subpart 1 funds, an SEA must submit for approval by the Department either (1) an individual State plan in accordance with ESEA section 1414(a) or (2) a consolidated State plan that meets the requirements of ESEA section 8302. An SEA that submitted a consolidated State plan was required to:

1. Provide a plan for assisting in the transition of children and youth between correctional facilities and locally operated programs (ESEA section 1414(a)(1)(B)); and
2. Describe the program objectives and outcomes established by the State that will be used to assess the effectiveness of the program in improving the academic, career, and technical skills of children and youth in the program (ESEA section 1414(a)(2)(A)).

SEAs are encouraged to establish and implement statewide and interagency policies and procedures to assist in carrying out the purposes of Title I, Part D as described in each State’s consolidated State plan. Such policies and procedures may address issues such as the timely re-enrollment, transfer of school records and credits, or data sharing agreements.

The Department notes that, under the ESEA, every State has elected to submit a consolidated State plan.

A-2. May a State plan be revised?

Yes. The statute allows for plans to be reviewed and revised periodically by States. The Department encourages the State to periodically review its plan to evaluate whether it is sufficient to meet the needs of its students and to ensure the State is successfully meeting the goals of the program.

For States with an approved consolidated State plan, the State must submit its proposed amendments to the Department for review and approval prior to the State being able to implement the proposed change. Consistent with the consolidated assurances each State submitted under ESEA section 8304, prior to submitting any amendment to the Department, a State must consult with the Governor on the amendment, afford a reasonable opportunity for public comment on the amendment, and consider such comments. If a State were to submit an individual plan for Title I, Part D, the State would also have to submit any amendments to its individual plan for review and approval by the Department before such a change could be implemented.

B-1. How does the Department calculate the amount of Subpart 1 funds to award to SEAs?

In accordance with ESEA sections 1402(a) and 1412, the Department determines State allocations for Subpart 1 through a statutory formula based on State per-pupil expenditures and annual counts of neglected or delinquent children and youth, aged 20 or younger, who are enrolled in a regular program of instruction for at least:

1. 15 hours per week in an adult correctional institution; or
2. 20 hours per week in an institution for neglected or delinquent children and youth or in a community day program for neglected or delinquent children and youth.

(34 C.F.R. § 200.91(a)(1)).

B-2. What is an institution for neglected children and youth?

An institution for neglected children and youth is, as determined by the SEA, a public or private residential facility, other than a foster home, that is operated primarily for the care of children and youth who:

1. 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; and
2. Have had an average length of stay in the institution of at least 30 days.

(34 C.F.R. § 200.90(b)).

B-3. What is an institution for delinquent children and youth?

An institution for delinquent children and youth is, as determined by the SEA, a public or private residential facility that is operated primarily for the care of children and youth who:

1. Have been adjudicated to be delinquent or in need of supervision; and
2. Have had an average length of stay in the institution of at least 30 days.

(34 C.F.R. § 200.90(b)).

B-4. What is an adult correctional institution?

An adult correctional institution is a facility in which persons (including persons under 21 years of age) are confined as a result of a conviction for a criminal offense. (ESEA section 1432(1)).

B-5. What is a community day program?

A community day program is a regular program of instruction provided by an SA at a community day school operated specifically for neglected or delinquent children and youth. (ESEA section 1432(3)). For example, a community day program might serve delinquent children or youth who are under “house arrest” or electronic monitoring and live at home but are court ordered to attend school at an SA-operated facility where they receive educational services.

B-6. What is a regular program of instruction?

As noted in question B-1, Subpart 1 allocations are based on counts of children and youth who are neglected or delinquent and who are in a “regular program of instruction.” A regular program of instruction is an educational program (not beyond grade 12) in an institution or a community day program for neglected or delinquent children that consists of classroom instruction in basic school subjects such as reading, mathematics, and career and technical education. (34 C.F.R. §200.90(b)). Within these parameters, each SEA may determine what constitutes a “regular program of instruction” consistent with State law, taking into consideration factors such as the State’s graduation requirements or the minimum academic requirements at each grade level. Resources related to teaching and learning in the content areas for neglected, delinquent and at-risk youth can be found at NDTAC’s website at https://neglected-delinquent.ed.gov/topicareas/teaching-and-learning.

In addition, to be counted as a regular program of instruction, the program must be supported by non-Federal funds. For example, additional instructional time provided with funding from Title I, Part A of the ESEA or other Federal programs may not be counted towards the minimum hours of instruction described in question B-1. Finally, neither the manufacture of goods within the institution nor activities related to institutional maintenance are considered classroom instruction. (34 C.F.R. § 200.90(b)).

B-7. When must the annual child count be submitted by the SEA to the Department?

The SEA must annually submit the child count by January 31. (34 C.F.R. § 200.91(c)).

B-8. Does the count in a facility need to be adjusted to reflect the relative length of the school year?

Yes. The SEA must adjust the enrollment for each institution or community day program served by an SA by—

1. Multiplying the number determined through the child count (see question B-1) by the number of days per year the regular program of instruction operates; and
2. Dividing this number by 180. (34 C.F.R. § 200.91(b)).

B-9. Is there a specific date on which the child count must be taken by the SA?

The Department does not specify a date on which the child count must be taken by an SA. Instead, each SA must specify the date on which the enrollment of neglected or delinquent children and youth is determined. If a State has more than one SA, the SAs need not choose the same date. The date that each SA specifies for the annual count must be—

1. Consistent for all institutions or community day programs operated by the SA; and
2. Represent a school day in the calendar year preceding the year in which funds become available. (34 C.F.R. § 200.91(a)(2)).

B-10. How does an SA determine the number of children and youth to include in the annual count of eligible children and youth for determining Subpart 1 allocations?

The SA must identify eligible institutions, including adult correctional institutions, or community day programs for neglected or delinquent children and youth (as defined in B-2 through B-5) for which an SA is responsible for providing free public education and is providing a regular program of instruction. The average length of stay in an institution for neglected or delinquent children and youth must be at least 30 days. A child or youth must be 20 years or younger and in
an eligible institution or community day program to be included in the count. In addition, to be counted, a child or youth must be enrolled in a regular program of instruction provided by the SA for at least 20 hours per week if in an institution for neglected or delinquent children and youth or a community day program for neglected or delinquent children and youth or 15 hours per week if in an adult correctional institution. The SA counts all children and youth in an eligible institution or community day program for neglected or delinquent children and youth on the date of the count who meet these criteria (including any such children who are in foster care).

The SA is responsible for totaling the adjusted enrollment counts for children and youth in all of the neglected or delinquent institutions, adult correctional facilities, or community day programs that it operates and for providing the adjusted count to the SEA. The State count submitted to the Department by the SEA is the sum of the individual SA counts.

Additional information on conducting the annual count may be found in NDTAC’s toolkit: The Annual Count Toolkit: Determining Formula Counts for Title I, Part D Funding Allocations.

B-11. May an SA include children and youth who are placed in State institutions but whose families reside outside the State in the annual counts for the Subpart 1 fund allocation?

Yes. The count is based on the annual count of any children or youth residing in an institution located within the State, regardless of the child’s or youth’s State of origin.

B-12. May a State include neglected or delinquent children and youth served in private facilities under the jurisdiction of the SA in the annual count of eligible children and youth submitted to the Department for Subpart 1 allocation purposes?

Yes, provided that the neglected or delinquent children and youth counted are:

1. The responsibility of the SA;
2. Under the age of 21; and 
3. Enrolled in a regular program of instruction operated or supported by SAs in institutions or community day programs for neglected or delinquent children and youth and adult correctional institutions as specified in 34 C.F.R. § 200.91.

C-1. How does the SEA make subgrants to SAs?

Once the Department determines a State’s Subpart 1 allocation, the SEA makes subgrants to each SA that submits an application on the basis of its proportionate share of the State’s adjusted enrollment count of children and youth who are neglected or delinquent. (ESEA section 1412).

C-2. What are the eligibility requirements for an SA to receive Subpart 1 funds?

An SA is eligible to receive Subpart 1 funds if it is responsible for providing free public education for children and youth in institutions for neglected or delinquent children and youth, attending community day programs for children and youth who are neglected or delinquent, or in adult correctional institutions. (ESEA section 1411).

The number of eligible SAs varies from State to State, but almost all States have at least one eligible agency. Several States have an agency that administers both adult correctional institutions and institutions for youth who are delinquent or may have a separate agency that administers institutions for children and youth who are delinquent. In States serving children and youth who are neglected, a separate SA often administers institutions for these children and youth. Several States have created a correctional education agency that provides education to students in institutions and community day programs.

C-3. In order to receive a subgrant under Subpart 1, must an SA directly operate schools for children and youth who are neglected or delinquent?

No. To be eligible, the SA must be responsible for providing free public education for children and youth in institutions for neglected or delinquent children and youth, attending community day programs, or in adult correctional institutions. (ESEA section 1411). The statute does not require that the SA provide the services directly. An SA may provide educational services directly in State-operated schools or through contracts or, with approval from the SEA, subgrants with another SA an LEA, a private organization, or an institution of higher education (see 34 C.F.R. § 76.50). Whether or not services are provided directly by the SA, the SA is responsible for ensuring that the program operates in accordance with all applicable statutory and regulatory requirements, including Subpart 1 program requirements, the Uniform Guidance (2 C.F.R. Part 200), the IDEA (see question G-8), and civil rights requirements.

C-4. Is an SEA eligible to receive Subpart 1 funds as an SA?

Yes. An SEA may be an eligible SA if it meets the SA eligibility requirements described above in question C-2. Regardless of whether the SEA is an eligible SA, the SEA has administrative responsibility for ensuring that each SA (including the SEA, if applicable) operates its Subpart 1 program in accordance with all applicable statutory and regulatory requirements.

D-1. What are the requirements of a Subpart 1 SA application?

Under ESEA section 1414(c) an SA must submit an application to the SEA that addresses all of the following components:

1. Describes the procedures to be used, consistent with the State plan under ESEA section 1111, to assess the educational needs of the children to be served under Subpart 1 and, to the extent practicable, provide for such assessment upon entry into a correctional facility (see question Q-2 for additional information on assessment);
2. Provides an assurance that in making services available to children and youth in adult correctional institutions, priority will be given to such children and youth who are likely to complete incarceration within a two-year period;
3. Describes the program, including a budget for the first year of the program, with annual updates to be provided to the SEA;
4. Describes how the program will meet the goals and objectives of the State plan (consolidated State plans are publicly available at: https://www.ed.gov/about/ed-offices/oese/key-documents);
5. Describes how the SA will consult with experts and provide the necessary training for appropriate staff, to ensure that the planning and operation of institution-wide projects under ESEA section 1416 are of high quality (see question H-1 for select resources on planning and operating institution-wide projects);
6. Describes how the SA will use the results of the most recent evaluation under ESEA section 8601 to plan and improve the program (see Section Q for additional information on program evaluation);
7. Includes data showing that the SA has maintained the fiscal effort required of an LEA, in accordance with ESEA section 8521 (see question J-7 for additional information);
8. Describes how the programs will be coordinated with other appropriate State and Federal programs, such as programs under Title I of the Workforce Innovation and Opportunity Act, career and technical education programs, State and local dropout prevention programs, and special education programs (see section G for related resources and strategies);
9. Describes how the SA will encourage correctional facilities receiving funds under this subpart to coordinate with LEAs or alternative education programs attended by incarcerated children and youth prior to and after their incarceration to ensure that student assessments and appropriate academic records are shared jointly between the correctional facility and the LEA or alternative education program in order to facilitate the transition of such children and youth between the correctional facility and the LEA or alternative education program (see section G for related resources and strategies);
10. Describes how appropriate professional development will be provided to teachers and other staff (see question G-1 for related resources and strategies);
11. Designates an individual in each affected correctional facility or institution for neglected or delinquent children and youth to be responsible for issues relating to the transition of such children and youth between such facility or institution and locally operated programs (see section I for additional information on transition);
12. Describes how the SA will endeavor to coordinate with businesses for training and mentoring for participating children and youth (see section G for related resources and strategies);
13. Provides an assurance that the SA will assist in locating alternative programs through which students can continue their education if the students are not returning to school after leaving the correctional facility or institution for neglected or delinquent children and youth (see questions I-2 and I-3 for related resources);
14. Provides assurances that the SA will work with parents to secure parents’ assistance in improving the educational achievement of their children and youth, and preventing their children’s and youth’s further involvement in delinquent activities (see section G for related resources and strategies);
15. Provides an assurance that the SA will work with children and youth with disabilities in order to meet an existing individualized education program (IEP) and an assurance that the agency will notify the child’s or youth’s local school if the child or youth—
    A. Is identified as in need of special education services while the child or youth is in the correctional facility or institution for neglected or delinquent children and youth; and
    B. Intends to return to the local school (see question G-9 for additional information on serving students in need of special education services);
16. Provides an assurance that the SA will work with children and youth who dropped out of school before entering the correctional facility or institution for neglected or delinquent children and youth to encourage the children and youth to reenter school and attain a regular high school diploma once the term of the incarceration is completed or provide the child or youth with the skills necessary to gain employment, continue the education of the child or youth, or attain a regular high school diploma or its recognized equivalent if the child or youth does not intend to return to school (see section G for related resources and strategies);
17. Provides an assurance that certified or licensed teachers and other qualified staff are trained to work with children and youth with disabilities and other students with special needs taking into consideration the unique needs of such students;
18. Describes any additional services to be provided to children and youth, such as career counseling, distance learning, and assistance in securing student loans and grants;
19. Provides an assurance that the program under this subpart will be coordinated with any programs operated under the Juvenile Justice and Delinquency Prevention Act of 1974 (42 U.S.C. 5601 et seq.) or other comparable programs, if applicable; and
20. Describes how the SA will, to the extent feasible—
    A. Note when a youth has come into contact with both the child welfare and juvenile justice
    systems; and
    B. Deliver services and interventions designed to keep such youth in school that are evidence-based (to the extent a State determines that such evidence is reasonably available) (see questions G-2 and G-910 for additional information).

D-2. May an SEA approve an SA’s application for more than one year?

Yes, under certain circumstances. If an SA operates a program or project under Subpart 1 in which individual children or youth are likely to participate for more than one year, the SEA may approve the SA’s application for a subgrant under this subpart for a period not to exceed three years. (ESEA section 1417). Consistent with the SEA’s assurance in ESEA section 8304(a)(1) to administer programs in accordance with all applicable statutes, regulations, program plans, and applications, the SEA may require an SA to update annually information included in its original application if substantial changes occur in the numbers and needs of the children and youth to be served or the services to be provided.

D-3. When must an SA submit its application to the SEA?

Each SEA sets the deadline for submission of applications. Therefore, the deadline will vary from State to State.

D-4. May an SEA require information in the SA application that goes beyond the Federal statutory requirements?

Yes. The SEA prescribes the format for the SA application and determines the specific information the SA must submit as part of its application, in addition to the requirements in ESEA section 1414. The SEA may require information that is in addition to the Federal statutory requirements. However, the SEA may not use the application process to impose requirements that are inconsistent with the requirements of the ESEA or other applicable Federal statutes and regulations.

D-5. May an SA submit an application that consists only of separate applications from each of its facilities?

No. The SA must submit its own application addressing the requirements in ESEA section 1414(c) because the SA is the entity that applies for and receives the Subpart 1 subgrant and is responsible for the administration and control of funds. However, the SA may incorporate individual program plans from each of its facilities into its application.

D-6. Does an SA apply to the SEA for Subpart 1 funds when a contractor or other party provides the education services to children and youth in institutions or community day programs?

Yes. The SA, not the contractor, must apply to the SEA for funds because the SA is responsible for providing a free public education to the children and youth in the institutions and community day programs. The SA may contract with or arrange for another entity (such as an LEA, a community college, a private provider, or a university) to provide the education services either at the institution or off-site. An SA, however, is responsible for exercising administrative control over the program and ensuring that the contractor or other party complies with all applicable statutory and regulatory requirements.

D-7. If the eligible SA is the SEA, must it complete an SA application?

Yes. An SEA that receives Subpart 1 funds as an SA must have an application on file that meets all the SEA’s requirements for an SA application.

E-1. What types of institutions are eligible to receive Subpart 1 funds from SAs?

Once an SA receives Subpart 1 funds, it distributes the funds to eligible institutions within its jurisdiction in accordance with the needs assessment described in its application submitted to the SEA. Eligible institutions are institutions for neglected or delinquent children and youth, community day programs for neglected or delinquent children, and adult correctional institutions (as defined in B-2 through B-5) in which the SA is responsible for providing free public education to children and youth. (ESEA section 1411).

E-2. Are short-term institutions (those with an average length of stay of fewer than 30 days) eligible to receive Subpart 1 funds?

No. The average length of stay in an institution for delinquent children and youth or an institution for neglected children and youth must be at least 30 days for these institutions to be eligible to receive Subpart 1 funds. (34 C.F.R. § 200.90(b)).

This average length of stay requirement does not apply to community day school programs serving neglected or delinquent children and youth or to adult correctional institutions.

E-3. May an SA use its Subpart 1 allocation to serve children and youth in privately operated facilities?

Yes. An SA may contract with private facilities to serve neglected or delinquent children and youth. However, the SA is responsible for ensuring that a private facility operates a program in accordance with all applicable statutory and regulatory requirements.

E-4. Is the SA required to allocate its Subpart 1 funds to each facility that generated a count?

No. With SEA approval, the SA determines the facilities to which it allocates Subpart 1 funds. The SA has the discretion, based on its assessment of the educational needs of the children to be served under Subpart 1, to concentrate services on those institutions that have children and youth with the greatest need. For example, SAs may choose to focus services on facilities with youth who will be adults upon release, facilities with higher percentages of students with an identified disability, or facilities where the majority of students are credit-deficient or have the lowest reading and/or math scores at intake. SAs should consider the amount of funding needed to provide a high-quality Subpart 1 program and may choose to concentrate funds and services in facilities with higher numbers or percentages of eligible students rather than serving all facilities with an eligible student. The SEA should ensure that the SA’s approach is consistent with the State plan. The Department encourages the SEA to request this information in its SA application.

F-1. Which children and youth are eligible for services under Subpart 1?

To participate in the SA’s neglected or delinquent program, a child or youth must be:

1. 21 years of age or younger (34 C.F.R. §§ 200.90(a) and 200.103(b)(1));
2. Entitled to free public education up to grade 12 (34 C.F.R. §§ 200.90(a) and 200.103(b)(1)); and
3. Enrolled in a regular program of instruction at either an eligible institution or community day program for the required length of time (20 hours per week if in an institution or community day program for youth who are neglected or delinquent; 15 hours per week if in an adult correctional institution). (ESEA section 1412(a)(1)(A); 34 C.F.R. § 200.90(b)).

While students eligible for services may be 21 years of age or younger, only students under the age of 21 (i.e., 20 or younger) may be included in the annual count. (34 C.F.R. § 200.91).

F-2. May children and youth who were not included in the annual count receive services under Subpart 1?

Yes. While decisions about which children, youth, and facilities to include in (or exclude from) the annual counts must be based on statutory and regulatory requirements, SAs have considerable flexibility and discretion in determining which students may be served with grant funds available for activities under Subpart 1. In other words, the students counted do not need to be the same students receiving services (see questions E-4 and F-4).

F-3. Is a youth who has completed the General Educational Development (GED) program eligible to receive Subpart 1 services?

Yes. A student aged 21 or younger who is otherwise eligible to receive services under Subpart 1 and who has earned a GED or other type of high school diploma equivalent but takes courses that lead to a high school diploma is eligible to receive Subpart 1 services. Earning a high school diploma falls within the definition of “regular program of instruction” found in 34 C.F.R. § 200.90(b) because it involves schoolwork that would not be considered part of an educational program that goes beyond grade 12.

F-4. How does an SA identify and select children and youth to be served?

An SA that receives Subpart 1 funds must assess the educational needs of eligible children and youth in eligible institutions and community day programs. (ESEA section 1414(c)(1)). The Department encourages an SA to make these assessments on the basis of educationally objective criteria such as course credits earned, grades, performance on reading/language arts and mathematics diagnostic assessments given upon entering the facility, performance on State assessments, or identification for special education or as an English learner. The needs assessment enables the SA to identify the unique educational needs of these children and youth and the general instructional areas on which the program will focus. Using the assessment data, an SA can select those most in need of special assistance and determine the specific needs of participating children and youth to ensure that the services provided will be of sufficient size, scope, and quality to enable the participants to make significant progress toward meeting State performance standards. If available funds are insufficient to meet the needs of all eligible youth, those most in need should be served first. In making services available to children and youth in adult correctional facilities, however, an SA must give priority to those who are likely to complete incarceration within a two-year period. (ESEA section 1414(c)(2)). Additionally, SAs are not limited to providing services only to those students included in the annual count, nor must they serve every student counted.

G-1. What are allowable uses of Subpart 1 funds?

An SA must use Subpart 1 funds for programs and projects that are consistent with, as applicable, the State plan submitted under section 1414(a) or the consolidated State plan (see Section A) and that concentrate on providing participants with the knowledge to make a successful transition to secondary school completion, career and technical education, further education, or employment. (ESEA section 1415(a)(1)).

In addition, these programs and projects must be designed to support educational services that:

1. Except for institution-wide projects (see section H), are provided to children and youth identified by the SA as failing or most at-risk of failing to meet the challenging State academic standards;
2. Respond to the educational needs of such children and youth, including by supplementing and improving the quality of educational services provided to these children and youth by the SA; and
3. Afford such children and youth an opportunity to meet challenging State academic standards.
   (ESEA section 1415(a)(2)(B)).

These programs and projects may include the acquisition of equipment, pay-for-success (PFS) initiatives (see G-6), or providing targeted services for youth who have come into contact with both the child welfare system and juvenile justice system. (ESEA section 1415(a)(2)(A)).

An SA application (described in question D-1) must include a description of how the SA will, to the extent feasible, provide services and interventions designed to keep children and youth in school are evidence-based (to the extent a State determines that such evidence is reasonably available). (ESEA section 1414(c)(20)(B)). Consistent with this requirement, an SA might, for example, support evidence-based activities that assist with dropout prevention, such as mentoring, acceleration and evidence-based tutoring, service-learning opportunities, academic enrichment activities such as structured reading interventions, and career and technical education programs.

Subpart 1 funds may also support professional development used to improve the quality of educational services provided to participating children and youth. The Department encourages educators to evaluate the content and evidence-base of professional learning to ensure that funded trainings are most effectively meeting the needs of the program and participants.

G-2. What types of student information should be shared between LEAs and SAs to support student’s educational progress?

The educational records of students who transfer from LEAs to placements in SA facilities, or are moving back to LEAs, 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 or plans under Section 504 of the Rehabilitation Act of 1973 (Section 504)), and other relevant academic information. This may include information from State and local child welfare agencies when children have been involved in both systems. The Family Educational Rights and Privacy Act (20 U.S.C. § 1232g(b)(1)(B); 34 C.F.R. §§ 99.31(a)(2) and 99.34) allows schools and school districts to disclose education records without the prior written consent of a parent or an eligible student (an elementary or secondary student who is 18 or older) to officials of other schools and school districts to which a student is transferring or is already enrolled, as long as the purpose of the disclosure is related to the student’s enrollment or transfer, under the conditions set forth in 34 C.F.R. § 99.34(a). A school that discloses education records under this exception must make a reasonable attempt to notify the parent of the disclosure, unless the disclosure is initiated by the parent, or the school’s annual notification of rights under FERPA includes a notice that it forwards education records to other schools that have requested the records and in which the student seeks or intends to enroll or is already enrolled, as long as the disclosure is for purposes related to the student’s enrollment or transfer. Under this exception, a school has the discretion to disclose academic, disciplinary, or any other personally identifiable information (PII) from the student’s education records to the new school. Further, a parent does not, under FERPA, have the right to prevent a school from disclosing such PII from the student’s education records, or from communicating information about a student more generally, to the school in which the student seeks or intends to enroll.

G-3. To what extent may Subpart 1 funds support access to advanced coursework?

Subpart 1 funds must be used to provide participants with the knowledge and skills needed to make a successful transition to secondary school completion, career and technical education, further education, or employment. (ESEA section 1415(a)(1)(B)). 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 college credit. Other examples of activities that could be supported with Subpart 1 funds include dual or concurrent enrollment programs, college and career pathways, and educational opportunities that lead to an industry-recognized credential.

G-4. May Subpart 1 funds be used for training and mentoring programs?

Yes, provided the training and mentoring program is designed to meet the educational needs of the children and youth in the facility and is otherwise consistent with the requirements in ESEA section 1415. An SA must coordinate with businesses for training and mentoring for participating children and youth, consistent with ESEA section 1414(c)(12). Such programs may focus on specific student needs and could include voluntary training and mentoring from community-based organizations, local business professionals, individuals in careers in which the student has expressed an interest, academic or career counselors, or individuals with lived expertise in the juvenile justice system who have achieved academic or personal success. Facilities should also consider mentors that support a student’s cultural identity, such as Tribal elders or others familiar with the child’s native language or culture. Mentoring programs using a number of different approaches (e.g., peer, group, in-school, and community-based) have demonstrated the potential to contribute to positive outcomes for youth across a variety of demographic groups; in particular, they have been shown to both prevent and reduce delinquency.

G-5. How can Subpart 1 programs effectively coordinate with other relevant State and Federal programs?

There are many ways that an SA operating a Subpart 1 program can ensure effective coordination with other programs serving high-need youth and leverage existing funding to foster cross-system collaboration. For example, NDTAC has developed a brief specific to meeting the needs of homeless children and youth who are involved in the criminal justice system. Examples of collaborative activities include:

• Sharing student level data can help to ensure that students receive the supports, including the continuation of prior or existing supports, they need to ensure housing stability and access to education (see question G-2).
• Consistently attending cross-sector meetings to determine supports for students such as best interest determination and transition meetings. For example, Title I, Part D staff can work with local Education for Homeless Children and Youth staff at these meetings to ensure that students’ educational rights are protected and that they are able to access a school that meets their needs. Transition teams should also consider strategies to secure permanent housing before students are released.
• Working collaboratively with community partners to understand students’ needs. Collaborating with community organizations can help school administrators understand the supports available to students experiencing homelessness or other challenges. Part D staff can also develop needs assessments, in coordination with community organizations and other program staff, to further understand the needs of the students they are serving.
• At the SEA level, coordinating across programs on policy and funding decisions to leverage supports for students impacted by multiple systems.

An SA may engage in similar activities when coordinating with other Federal and State programs.

G-6. How may Title I, Part D funds be used for a pay-for-success (PFS) initiative?

A PFS initiative is defined as a performance-based grant, contract, or cooperative agreement awarded by a public entity in which a commitment is made to pay for improved outcomes that result in social benefit and direct cost savings or cost avoidance to the public sector. (ESEA section 8101(40)).

PFS initiatives must include—

1. A feasibility study on the initiative describing how the proposed intervention is based on evidence of effectiveness;
2. A rigorous, third-party evaluation that uses experimental or quasi-experimental design or other research methodologies that allow for the strongest possible causal inferences to determine whether the initiative has met its proposed outcomes;
3. An annual, publicly available report on the progress of the initiative; and
4. A requirement that payments are made to the recipient of a grant, contract, or cooperative agreement only when agreed upon outcomes are achieved, except that the entity may make payments to the third party conducting the evaluation described above. 

(ESEA section 8101(40)).

Paying for rewards for students to take assessments or complete schoolwork is not considered a PFS initiative.

G-7. Is an SA required to support parental and family involvement?

Yes. In its application, an SA must assure that it will work with parents and families to secure their assistance in improving the educational achievement of their children and youth and, as appropriate, preventing further involvement in delinquent activities. (ESEA section 1414(c)(14)). An SA, to the greatest extent possible, must give parents and families the opportunity to participate in their child’s educational plans. ESEA section 8101(38) defines “parent” as including a legal guardian or other person standing in loco parentis (such as a grandparent or stepparent with whom the child lives, or a person who is legally responsible for the child’s welfare).

G-8. How can SAs support parents and families in improving educational achievement of their children and youth and preventing further involvement in the juvenile justice system?

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 into the next step in their educational or life journey. 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 SA 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;
• Parent-teacher conferences with both in-person and virtual options, including meetings related to IEPs or plans under Section 504;
• 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; and
• 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 student’s transcripts, IEPs, or other school records, and connecting families to community-based resources including housing assistance, adult education, job training, drug or alcohol counseling, mental health supports, or other supports as appropriate to each family’s or student’s needs.

Please note that facilities 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, a facility 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)).

G-9. What responsibilities does an SA have to identify and serve children with disabilities?

As noted in question D-1, the SA application for a Subpart 1 subgrant must include several assurances related to identifying and serving children with disabilities. Consistent with these assurances, an SA must work with children and youth with disabilities in order to meet existing IEPs and notify the child’s or youth’s local school if the child or youth is identified as in need of special education and related services while in the correctional facility and intends to return to the local school. (ESEA section 1414(c)(15)). An SA also must ensure that certified or licensed teachers and other qualified staff are trained to work with children and youth with disabilities and other students with special needs. (ESEA section 1414(c)(17)).

Under IDEA Part B, an SA must have child find policies and procedures in effect, in compliance with SEA requirements, to ensure that all age-eligible students with disabilities, including those in correctional facilities, who are in need of special education and related services, are identified, located, and evaluated, regardless of the severity of their disability. (34 C.F.R. §§ 300.111(a)(1)(i), 300.2(b)(1)(iv)). Students suspected of having a disability who need special education and related services must be evaluated, subject to applicable parental consent requirements, in a timely manner, even if the student will not be in the facility long enough to complete the evaluation. (34 C.F.R. §§ 300.300(a), 300.301(c)(1)).

If a student transfers from an LEA to a correctional facility in the same school year after the evaluation has begun, both the correctional facility and LEA must coordinate an assessment to ensure that a timely evaluation occurs. Id. To meet these requirements, the Department strongly encourages SEAs to develop child find policies and procedures that address the unique challenges associated with identifying students with disabilities in correctional facilities. Id.

In addition, SAs must comply with all applicable IDEA secondary transition requirements, as outlined in the student’s IEP, to facilitate eligible students’ movement from secondary education in the correctional facility to appropriate post-school activities. (34 C.F.R. § 300.320(b)).

A student with a disability is entitled to the protections in the IDEA discipline procedures. Students who miss more than 10 consecutive school days or a series of removals that total more than 10 days in a school year due to facility disciplinary policies require a manifestation determination under IDEA as this constitutes a change in placement. SAs should work with LEAs and local delinquent facilities to transfer records, including special education records and evaluation information, in a timely manner in accordance with State law. (34 C.F.R. §§ 300.530–300.535).

G-10. What are the responsibilities of an SA regarding youth who have come into contact with both the child welfare and juvenile justice systems?

An SA must describe in its subgrant application how it will, to the extent feasible, identify when a youth has come into contact with both the child welfare and juvenile justice system. (ESEA section 1414(c)(20)(A)). The SA application must also describe how the SA will provide timely, evidence-based services and interventions to help those youth stay in school. (ESEA section 1414(c)(20)(B)).

In addition to the records and information that should be shared between facilities and LEAs as outlined in G-2, the Department encourages an SEA to develop information sharing agreements between the SEA, State child welfare agency, and State juvenile justice agency that focus on information that may facilitate needed services and supports for children and youth involved in both the child welfare and juvenile justice systems. Information to be covered in these agreements may include current living placement, educational decision maker, academic performance and school credits, special education status, school discipline, and school attendance records.

The Connections with Youth in the Child Welfare System website has additional information about the overlapping risk factors for this population. In addition, NDTAC offers a number of practices and strategies for supporting students involved in both the child welfare and juvenile justice systems, such as maintaining transcripts of progress in courses at all times during the school year so that transcripts can be transferred immediately when youth changes system, providing youth with access to trained counselors to learn about postsecondary education options, and seeking and using authentic family and caregiver input.

H-1. What are institution-wide projects?

ESEA section 1416 authorizes an SA that provides free public education for children and youth in an institution for neglected or delinquent children and youth (other than an adult correctional institution) or attending a community day program for neglected or delinquent children and youth to use Subpart 1 funds to serve all children and youth in, and upgrade the entire educational effort of, that institution or program. To operate an institution-wide project, the SA must have developed, and the SEA must have approved, a comprehensive plan for that institution or program. (ESEA section 1416).

The purpose of the institution-wide approach is similar to that of schoolwide programs operated under Title I, Part A. The authority enables an SA to:

1. Focus on strategies built on institution-wide reforms that improve the overall educational program of an institution, rather than on add-on services for individual students;
2. Use Subpart 1 funds in coordination with other State and Federal funds for education programs to support comprehensive approaches that meet the educational needs of all children and youth in neglected or delinquent institutions; and
3. Use Subpart 1 funds more flexibly.

An SA operating an institution-wide project is not required to identify particular children and youth in an institution as eligible for services and may use these funds in any manner it chooses, so long as the use is consistent with the SA’s comprehensive plan approved by the SEA, as described in question H-2. (ESEA section 1416). An SA may use its comprehensive needs assessment, for example, to identify students with greater needs and focus on services for those students.

H-2. How does an SA apply to operate an institution-wide project?

ESEA section 1416 requires that an SA apply to operate an institution-wide project by submitting for approval by the SEA a comprehensive plan that:

1. Provides for a comprehensive assessment of the educational needs of all children and youth in the institution or program serving juveniles;
2. Provides for a comprehensive assessment of the educational needs of youth aged 20 and younger in adult facilities who are expected to complete incarceration within a 2-year period;
3. Describes the steps the SA has taken, or will take, to provide all children and youth under age 21 with the opportunity to meet challenging State academic standards in order to improve the likelihood that the children and youth will attain a regular high school diploma or its recognized equivalent, or find employment after leaving the institution;
4. Describes the instructional program, specialized instructional support services, and procedures that will be used to meet the needs described in paragraph (1), including, to the extent feasible, the provision of mentors for the children and youth described in paragraph (1), and how relevant and appropriate academic records and plans regarding the continuation of educational services for such children or youth are shared jointly between the SA operating the institution or program and LEA in order to facilitate the transition of such children and youth between the LEA and the SA;
5. Specifically describes how such funds will be used;
6. Describes the measures and procedures that will be used to assess and improve student achievement;
7. Describes how the agency has planned, and will implement and evaluate, the institution-wide or program-wide project in consultation with personnel providing direct instructional services and support services in institutions or community day programs for neglected or delinquent children and youth, and with personnel from the SEA; and
8. Includes an assurance that the SA has provided for appropriate training for teachers and other instructional and administrative personnel to enable such teachers and personnel to carry out the project effectively (please see question G-1 for related resources).

H-3. May an adult correctional institution use its funds for an institution-wide project?

No. Institution-wide programs may only be operated in an institution for neglected or delinquent children and youth or in a community day program for neglected or delinquent children and youth. (ESEA section 1416).

I-1. Is an SA required to provide transition services?

Yes. One of the goals of the Title I, Part D program is to provide neglected and delinquent children and youth with services to enable them to transition successfully from institutionalization to further schooling or employment. (ESEA section 1401(a)(2)).

ESEA section 1418(a) requires that each SA reserve not less than 15 percent and not more than 30 percent of the amount it receives in any year under Subpart 1 to support transition services. Transition services projects may be conducted either directly by the SA or through a contract or other arrangement with one or more LEAs, other public agencies, or private nonprofit organizations. (ESEA section 1418(b)). Transition activities, like other activities funded by Subpart 1, must supplement and not supplant services that would in the absence of Subpart 1 funds be provided through State or local funds.

I-2. What are transition services?

Transition services focus on helping children and youth who are neglected or delinquent, to successfully reenter their local school, postsecondary education, career and technical training programs, or to find employment after they leave the institution and return to the local community.

Transition services are services that support:

1. Projects that facilitate the transition of children and youth between State-operated institutions, or institutions in the State operated by the Secretary of the Interior, and schools served by LEAs or schools operated or funded by the Bureau of Indian Education; or

2. The successful reentry of youth offenders, who are age 20 or younger and have received a regular high school diploma or its recognized equivalent, into postsecondary education, or career and technical training programs, through strategies designed to expose the youth to, and prepare the youth for, postsecondary education, or career and technical training programs, such as:

   A. Preplacement programs that allow adjudicated or incarcerated youth to audit or attend courses on college, university, or community college campuses, or through programs provided in institutional settings;
   B. Worksite schools, in which institutions of higher education and private or public employers partner to create programs to help students make a successful transition to postsecondary education and employment; and
   C. Essential support services to ensure the success of the youth, such as personal, career and technical, and academic, counseling; placement services designed to place the youth in a university, college, or community college program; information concerning, and assistance in obtaining, available student financial aid; counseling services; and job placement services.

   (ESEA section 1418(a)(2)).

SAs may provide these services to students directly, or may contract services out to an LEA, other public agencies, or to private nonprofit organizations in a wide variety of educational settings designed to meet the unique needs of students served by this program. NDTAC provides resources on transition services, including a Transition Toolkit Supplement that was published September 2023.

I-3. What steps must an SEA take to ensure the timely re-enrollment of students who have been placed in the juvenile justice system in secondary schools or re-entry programs, including the transfer of credits?

An SEA must have procedures to ensure the timely re-enrollment of each student who has been placed in the juvenile justice system in secondary school or in a re-entry program that meets the needs of the student, including the transfer of credits that such student earned during the placement. (ESEA section 1414(a)(2)(E)). In developing these procedures, the Department encourages SEAs to consult with SAs and LEAs to identify and quickly address barriers to re-enrollment and the transfer of credits. For example, SAs should be prepared to provide information about the SA curriculum and program offerings, adherence to State standards, or other information necessary to assist LEAs in understanding the course content offered to students by the SA so that the receiving school can accept full and partial course credits and ensure appropriate course placement for the student. Students served in SA programs should be included in the State’s assessment and accountability system so that students receive the same academic programming as other youth and SAs are held accountable for the students’ academic success. Additionally, the Department encourages SAs to provide training and technical assistance to LEA staff, including administrators, registration clerks, and school counselors, on the need to provide timely reenrollment to students transitioning from SA facilities.

I-4. Could an SA fund both pre-release and post-release activities using funds reserved for transition?

Yes. Transition activities could include both within-institution pre-release activities as well as post-release activities. As described in ESEA section 1418(a)(1), this could include activities in State-operated institutions as well as in the schools that students are transitioning to, such as schools served by LEAs.

Examples of pre-release activities could include transition planning, preplacement programs that allow youth to audit or attend postsecondary education courses, and postsecondary education and job placement services and counseling.

Examples of post-release activities could include job-based or postsecondary education counseling and support services, as well as the support of a transition team.

I-5. Can Subpart 1 transition funds be used for postsecondary education courses and placement services?

Subpart 1 funds may be used for transition activities including preplacement programs that allow adjudicated or incarcerated youth who are 20 years old or younger and who have received a regular high school diploma or its recognized equivalent to audit or attend courses on college, university, or community college campuses or through programs provided in institutional settings. (ESEA section 1418(a)(2)(A)).

Additionally, Subpart 1 funds may be used for essential support services such as counseling, placement services designed to place the youth in a university, college, or community college program, such as SAT and ACT preparation courses, as well as for information concerning, and assistance in obtaining, available student financial aid (ESEA section 1418(a)(2)(C)), including support in completing the Free Application for Federal Student Aid (FAFSA).

J-1. Does Subpart 1 have a supplement, not supplant provision?

J-2.To what extent may an SEA reserve funds from its Subpart 1 allocation for State administration activities?

As a general rule, section 1004(a) of the ESEA authorizes an SEA to reserve for State administration of Title I, Parts A, C, and D the greater of one percent of the amounts received under these parts or $400,000. These funds may be used to administer any of these programs (e.g., Title I, Part A administrative funds are available to administer Title I, Part D).

However, under section 1004(b) of the ESEA, when the total annual appropriation for Title I, Parts A, C, and D (Subpart 1) exceeds $14 billion, the amount an SEA reserves for State administration may not exceed one percent of the amount it would otherwise receive if $14 billion were allocated among the States for Title I, Parts A, C, and D. Since FY 2008, appropriations for Title I programs have exceeded $14 billion; therefore, the maximum amount States may reserve for administration has been capped by section 1004(b) of the ESEA.

Where the greater of the amounts described above that are available for State administration is $400,000, the SEA is not required to reserve funds proportionately from each of Parts A, C, and D (Subpart 1) and may, for example, reserve funds entirely from Title I, Part A. However, in reserving $400,000, an SEA may not reserve more funds for State administration from Part C or Part D than it would have had it reserved proportionately from Parts A, C, and D. (34 C.F.R. § 200.100(b)(2)).

Additionally, to the extent an SEA consolidates administrative funds under ESEA section 8201 and includes funds reserved under ESEA section 1004 in the consolidation, the SEA may use the consolidated administrative funds to administer Title I, Part D.

J-3. What options does an SA and SEA have if a facility receiving services with Subpart 1 funding closes in the middle of a grant period?

If a facility closes in the middle of a grant period, the SA 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 1 services through the SA or providing additional services to eligible children and youth in another facility already served by the SA.

If an SA 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 SAs. An SEA must redistribute funds to other SAs based on their proportionate count of students (see question C-1). An SEA may not, however, allocate any portion of the SA funds for use under Subpart 2 (see question J-5).

J-4. May an SA carry over Subpart 1 funds?

Yes. If an SA does not obligate all of its subgrant funds in the fiscal year for which the funds were appropriated, it may carry over the excess funds for obligation during a carryover period of one additional fiscal year. There is no limitation on the amount of funds that an SA may carry over. Both the SEA and SA, however, must obligate all funds within the 27-month period of availability of the grant. In other words, an SA must obligate funds by September 30 of the second year of availability (i.e., for funds awarded to SEAs on July 1, 2024, an SA must obligate funds by September 30, 2026). (See General Education Provisions Act (GEPA) section 421(b); 34 C.F.R. § 76.709).

J-5. Can the SEA reallocate Subpart 1 funds from one SA to another?

Yes. Under ESEA section 1413, if an SEA determines that an SA does not need the full amount of a subgrant for which the SA is eligible for any fiscal year, the SEA may reallocate the amount that will not be needed to other eligible SAs that need additional funds to carry out their Subpart 1 programs. An SEA has discretion to determine the amount of the funds to be reallocated.

Unclaimed or unspent Subpart 1 funds cannot be reallocated to Subpart 2.

J-6. May an SEA transfer funds from Subpart 1 to Subpart 2?

No. Subpart 1 and Subpart 2 have separate authorizations. Only SAs are eligible to receive subgrants from SEAs under Subpart 1, and only LEAs are eligible to receive subgrants from SEAs under Subpart 2.

J-7. Is the SA required to demonstrate maintenance of effort?

Yes. All SAs, whether an SEA or a separate agency, are required to include in their application for funds “data showing that the SA has maintained the fiscal effort required of an LEA, in accordance with section 8521.” (ESEA section 1414(c)(7)).

J-8. What are the monitoring responsibilities of an SEA for SAs under Subpart 1?

An SEA is required by Federal regulations (2 C.F.R. § 200.332(e)) to monitor its subgrantees to ensure that the subaward is used for authorized purposes; is in compliance with Federal statues, regulations, and the terms and conditions of the subaward; and that subaward performance goals are achieved. In implementing these requirements, the SEA must “ensure that the subrecipient takes corrective action on all significant developments that negatively affect the subaward.” (2 C.F.R. § 200.332(e)(2)). To meet this requirement, the Department recommends that SEAs provide subgrantees with a report that includes any findings or corrective actions required. SEAs should support subgrantees in developing and implementing corrective actions to improve program outcomes for children and youth.

SAs that operate Title I, Part D subgrant-funded programs in one or more facilities are responsible for ensuring that each facility that participates in the program complies with all aspects of the SA’s grant application, including all assurances, requirements, and data collections.