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Impact Aid Programs rule (2015)

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The Impact Aid Program rule is a significant rule issued by the U.S. Department of Education effective June 11, 2015, that amended department regulations concerning the Impact Aid Program. The amendments were implemented to align the regulations with statutory changes made to Title VIII of the Elementary and Secondary Education Act of 1965 and the Individuals with Disabilities Education Act.[1]

HIGHLIGHTS
  • Name: Impact Aid Program
  • Agency: Office of Elementary and Secondary Education, Department of Education
  • Type of significant rule: Economically significant rule

    • Timeline

    The following timeline details key rulemaking activity:

    Background

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    The Elementary and Secondary Education Act of 1965 (ESEA), which was amended by the No Child Left Behind Act of 2001 (NCLBA), directs states on assessments, reporting requirements, student assistance, and accountability measures. The NCLBA aimed to support standards-based education reform drawn from the philosophy that setting high standards and establishing measurable goals for schools would improve individual outcomes for public school students. The legislation mandated that states develop standardized tests and administer assessments to all students at certain grade levels in order to receive federal funding.[2]

    The Individuals with Disabilities Education Act (IDEA) was enacted by President Gerald Ford (R) in 1975 in an effort to ensure access to public education and appropriate special education services for children with disabilities. The law was reauthorized in 2004 by President George W. Bush (R) to align IDEA with the requirements of the No Child Left Behind Act. The reauthorization led to updated requirements for governing the Impact Aid Program.[3]

    The ESEA authorized the Impact Aid Program, which aimed to provide financial assistance to "local school districts that have lost property tax revenue due to the presence of tax-exempt Federal property, or that have experienced increased expenditures due to the enrollment of federally connected children, including children living on Indian lands."[4] The Department of Education issued regulations on June 11, 2015, in an effort to align the Impact Aid Program provisions of Title VIII of the ESEA with statutory changes made by the NCLBA, IDEA, The National Defense Authorization Act for Fiscal Year 2013, the 2002 Supplemental Appropriations Act, the Department of Education Appropriations Act of 2001, and the Impact Aid Reauthorization Act of 2000.[1]

    Summary of the rule

    The following is a summary of the rule from the rule's entry in the Federal Register:

    “ The Secretary amends the Impact Aid Program regulations to reflect changes made to title VIII of the Elementary and Secondary Education Act of 1965 (ESEA or Act), as amended by various statutes, to delete obsolete provisions, to correct technical errors, and to incorporate relevant statutory and regulatory changes from the Individuals with Disabilities Education Act (IDEA) and its implementing regulations. The Secretary makes minor technical, clarifying, and streamlining changes for the reader's convenience, including reordering the regulations that implement the section of the Act regarding local contribution rates that are based on generally comparable local educational agencies (LEAs).[1][5] ”

    Summary of provisions

    The following is a summary of the provisions from the final rule's entry in the Federal Register:[1]

    “

    Subpart A—General

    • Revising § 222.2 to reflect that the definition of “modernization” in section 8013 of the Act is applicable to this part.
    • Revising §§ 222.3 and 222.5 to reflect a change to the ESEA requiring that we use preceding-year data in calculating payments under section 8002 of the Act, which means that applications for sections 8002 and 8003 payments are based on the same year's data.
    • Revising § 222.4 to remove outdated references to the submission of applications via U.S. mail.
    • Revising § 222.6 to conform to the requirement in section 8005 of the ESEA that we give written notice to an applicant following the applicant's failure to comply with the applicable filing deadline.
    • Revising §§ 222.12 and 222.13, concerning overpayment forgiveness, to remove references to obsolete statutory provisions and deadlines since overpayments under those provisions no longer exist.
    • Revising § 222.19 to update the list of statutes and regulations that apply to the program.

    Subpart B—Payments for Federal Property Under Section 8002 of the Act

    • Revising § 222.22 to conform to statutory changes to section 8002 of the Act concerning compensation that LEAs receive from Federal activities on eligible Federal property.
    • Despite the fact that § 222.23 is currently superseded by statutory changes to section 8002 of the Act, we are not removing or revising § 222.23 because those statutory provisions are scheduled to expire.

    Subpart C—Payments for Federally Connected Children Under Section 8003(b) of the Act

    • Revising § 222.33 to indicate that an LEA makes its membership count before the deadline date upon which Impact Aid applications are due, rather than no later than that date.
    • Revising § 222.35(a)(2) to refer to an “unsigned” parent-pupil survey form.
    • In § 222.36, amending paragraphs (a) and (b) to reflect a statutory change related to application data submitted by newly established LEAs, and removing paragraph (d) as obsolete.
    • In § 222.38, updating the statutory references in the heading and paragraph (a) to conform to current statutory designations and renumbering the provisions of the section. In addition, we add as new paragraph (b) provisions that incorporate the statutory requirement that we use data from the most recent fiscal year for which satisfactory data are available for local contribution rates based on one-half of the State average or one-half of the national average if satisfactory expenditure data from the third preceding fiscal year are not available.
    • Reorganizing the local contribution rate regulations currently in §§ 222.39 through 222.41 of subpart C to streamline those provisions, remove redundancies, and reflect current law and procedures. In recent fiscal years, approximately 15 State educational agencies (SEAs) have opted to use these provisions. Fourteen of these SEAs used the provision in § 222.39 and only one SEA used the additional factor provisions in current § 222.39(c). For that reason we have reorganized the sections to keep the basic generally comparable regulations under § 222.39 and move the more specific provisions relating to the use of additional factors to § 222.40. The substance of these provisions has not changed; in accordance with section 8003(b)(1)(C)(iii) of the Act, the methods that SEAs use to determine generally comparable local contribution rates remain unchanged from the regulations in effect on January 1, 1994.

    Paragraphs (a) and (b) of § 222.39 describe the method SEAs use to identify generally comparable LEAs for determining local contribution rates, through grouping by grade span/legal classification, size, and location. The current provisions in § 222.40 and the examples also refer to grouping by grade span/legal classification, size, and location for determining local contribution rates; we move these provisions to § 222.39 in order to eliminate redundancy and streamline the provisions. We remove the remaining provisions in current § 222.40, and in the example that follows the section, as they are redundant.

    The provisions in new § 222.40, moved from current § 222.39(c), describe the circumstances and procedures for using additional factors to identify a subgroup of generally comparable LEAs, for the limited number of LEAs that qualify for this option. The examples from current § 222.39(c) are retained, with the exception of one example removed for redundancy. Paragraph (e) of new § 222.40 contains the provisions of current § 222.39(c)(4), with the clarification that the SEA certifies the local contribution rate data by submitting that data to the Secretary, in accordance with the current text of section 8003(b)(1)(c)(iii) of the Act.

    • Revising § 222.41 to add a reference to new § 222.40 and to add clarifying language regarding the certification of data by the SEA.
    • Reserving § 222.42 for further provisions regarding local contribution rates.
    • Moving to new § 222.43 the content of current §§ 222.63 and 222.64 (from subpart E). These provisions implement the authority in section 8003(b)(1)(F) of the ESEA regarding increases in the local contribution rate of an LEA that is unable to provide an equivalent level of education due to higher current expenditures caused by unusual geographic factors. Previously, this type of assistance was grouped as one type of heavily impacted district assistance. Although the Act does not currently treat this assistance as heavily impacted district funding, the substantive requirements for the statutory provision remain unchanged. Paragraph (a)(1)-(3) of new § 222.43 contains the information currently in § 222.63(a)-(c), updated to reflect statutory changes. Paragraph (a)(4) of new § 222.43 contains the provisions of current § 222.63(d), specifically that if an LEA is in a State authorized by the Department to take into account Impact Aid under section 8009 of the Act, then it is not eligible to use the “unusual geographic” provision. Paragraph (b) of new § 222.43 contains the contents of current § 222.64(b), with clarifying changes. We remove current § 222.64(a) as it is already covered by the provisions in § 222.43.
    • Moving to new § 222.44 the provisions currently found in § 222.73 related to the calculation of maximum payments for eligible LEAs under section 8003(b)(1)(F) of the ESEA. We remove § 222.73(c) in accordance with statutory changes. We also update statutory and regulatory references, and make minor clarifying changes; however, we do not change the content of these provisions.

    Subpart D—Payments Under Section 8003(d) of the Act for Local Educational Agencies That Serve Children With Disabilities

    • Revising this subpart to incorporate amendments that have been made to parts B and C of the IDEA, through the 2004 statutory changes to IDEA, the 2006 IDEA part B final regulations codified in 34 CFR part 300, and the 2011 IDEA part C final regulations codified in 34 CFR part 303.
    • Revising § 222.50 (definitions) by removing the previous definitions of the following terms and replacing them with cross-references to the definitions of those terms in the IDEA regulations: Free appropriate public education or FAPE, individualized education program or IEP, related services, and special education. In addition, we add the following relevant new terms with cross-references to their definitions in the applicable IDEA regulations: Child with a disability, early intervention services, individualized family service plan or IFSP, and infants, toddlers, and children with disabilities. We use the term “infants, toddlers, and children with disabilities” to refer to both “infants and toddlers with disabilities” who are eligible to receive early intervention services under part C of the IDEA and “children with disabilities” who are eligible to receive special education and related services under part B of the IDEA. Combined, these are all children who are eligible to receive services under the IDEA for purposes of the Impact Aid statute (20 U.S.C. 7703(d)(1)(A)) and we refer to them in these regulations as “infants, toddlers, and children with disabilities.” We remove the definition of “preschool” as it is unnecessary due to Impact Aid provisions that permit districts to claim preschool-age students regardless of whether their education is part of elementary education under State law, and to avoid any confusion with respect to the provisions in section 619 and part C of the IDEA regarding preschool children. We remove the definition of “children with specific learning disabilities” because that term is already encompassed in the definition of “children with disabilities” under part B of the IDEA. We remove the definition of “intermediate educational unit” because it has been subsumed in the IDEA definition of LEA in 34 CFR 303.28.
    • Revising § 222.51(a) and (b) and adding § 222.51(c), to clarify the existing requirement, from the Impact Aid statute in 20 U.S.C. 7703(d)(1), that LEAs providing a free appropriate public education or early intervention services to infants, toddlers, and children with disabilities under Parts B and C of the IDEA may count for Impact Aid payment purposes only certain of those children who are federally connected and eligible to receive services under the IDEA. Under the Impact Aid statute and the IDEA, in order to count those infants, toddlers, and children with disabilities, the LEA must provide free appropriate public education or early intervention services (whichever is applicable) either directly or through an arrangement with another entity at no cost to the children's parents, and each child being counted must have in place an IEP or IFSP (as appropriate).
    • Revising §§ 222.52, 222.53, 222.54, and 222.55 to reflect revisions to part C of the IDEA by including a reference to early intervention services. We also revise § 222.53 to improve its readability and consistency with IDEA statutory provisions regarding prior approval if funds are used for construction.

    Subpart E—Payments for Heavily Impacted Local Educational Agencies Under Section 8003(b)(2) of the Act

    • Removing subpart E in its entirety and replacing it with a new subpart E, consisting of a new heading and new §§ 222.60 through 222.79. The new subpart E, which governs payments to certain heavily impacted LEAs, reflects statutory changes to section 8003(b)(2) of the ESEA. We explain the statutory changes and implementing regulatory provisions by regulatory section number below.
    • New § 222.60 reflects the statutory change that payments to heavily impacted districts are no longer supplemental to other Impact Aid payments under section 8003(b).
    • New § 222.61 reflects changes to statutory requirements for data used to determine eligibility of heavily impacted LEAs. This section includes language clarifying that the tax rate requirement for these LEAs may be met by having a tax rate that is at least 95 percent of the average tax rate of either comparable LEAs as identified in § 222.74 or all LEAs in the State, pursuant to section 8003(b)(2)(G) of the Act.
    • New § 222.62 reflects changes to the criteria in section 8003(b)(2) of the Act that an LEA must meet to be considered an eligible “continuing” heavily impacted LEA, and the criteria that an LEA must meet to be considered an eligible “new” heavily impacted LEA. An LEA that applies and satisfies the eligibility requirements for two consecutive fiscal years is considered a “new” heavily impacted LEA. Section 222.62(b) reflects the statutory requirement that such an LEA would not receive its first payment as a “new” heavily impacted LEA until the second year of application eligibility.
    • New § 222.63 describes the primary statutory categories of a “continuing” heavily impacted LEA. An LEA that applies and satisfies the eligibility requirement of one of the primary statutory categories and that also received a heavily impacted payment for fiscal year 2000 under section 8003(f) of the ESEA is considered a “continuing” heavily impacted LEA.

    New § 222.64 describes the statutory categories of a “new” heavily impacted LEA. These categories are similar to those described in new § 222.63. There is one significant difference in the per pupil expenditure (PPE) requirement for a “new” heavily impacted LEA that has a total enrollment of 350 or more. Those LEAs do not have the option of satisfying the PPE requirement by using the average PPE of all the States. Instead, they can only satisfy this requirement by using the average PPE of all the LEAs within their State. The tax rate requirement for these LEAs may be met by having a tax rate that is at least 95 percent of the average tax rate of either comparable LEAs as identified in § 222.74 or all LEAs in the State, pursuant to section 8003(b)(2)(G) of the ESEA. For an LEA that has a total enrollment of less than 350, the PPE and tax rate are based on one or three comparable LEAs.]

    • New § 222.65 connects the new statutory requirements for heavily impacted LEAs with current regulatory provisions for calculating tax rates for those LEAs.
    • New § 222.66 reflects the statutory provisions regarding loss of and resumption of eligibility for section 8003(b)(2) payments. In the year that either a “continuing” or “new” heavily impacted LEA loses its eligibility for a payment under section 8003(b)(2), it will still receive a section 8002(b)(2) payment for that year (commonly known as a “hold harmless” payment). However, the payment for the year of ineligibility will be based on the number of children in average daily attendance (ADA) that would be counted for that application if the LEA were eligible.

    For resumption of eligibility, a “continuing” heavily impacted LEA must apply and be eligible for two consecutive years in order to receive another section 8003(b)(2) payment. In contrast, a “new” heavily impacted LEA must only apply and be eligible for the year of application to receive another section 8003(b)(2) payment. The examples and charts are provided for additional clarity as to the statutory requirements.

    • New § 222.67 contains the provisions of current § 222.65 with updated statutory references, and reflects the statutory change that payments to heavily impacted districts are no longer supplemental to other Impact Aid payments under section 8003(b) of the Act. The revision also clarifies that in cases where certain States are certified by the Department to take into account Impact Aid payments, the State is still forbidden from taking into account the amount of Impact Aid that is due to a district's heavily impacted status. There is no substantive change to these provisions.
    • New §§ 222.68-222.73 contain the provisions of current §§ 222.66 through 222.71, revised to reflect statutory changes to the eligibility requirements for heavily impacted districts in section 8003(b)(2)(B) and (C) of the Act, to make clarity changes, and to conform references to the other new regulatory sections of subpart E.
    • Section 222.74 is revised to reflect new statutory requirements for the selection of one or three generally comparable LEAs for certain LEAs in section 8003(b)(2) of the ESEA and to update the statutory and regulatory citations.
    • Section 222.75 is revised to reflect the new statutory provisions in section 8003(b)(2) of the ESEA that require the Department to use data from the third preceding fiscal year, and that limit the type of applicants for which we calculate the PPE of generally comparable school districts to only those districts described in new § 222.64(a)(2)(ii), that is, “new” districts with less than 350 ADA.
    • Section 222.76, which pertains to ratable reduction of payments for years when insufficient funds are appropriated to make full payments under the Act, is removed because section 8003(b)(3) of the Act now contains detailed provisions for years in which insufficient funds are appropriated and applies to all payments, including those for heavily impacted districts, making this provision unnecessary.

    Subpart F—Payments to Local Educational Agencies for Children With Severe Disabilities Under Section 8003(g) of the Act

    • Removing and reserving subpart F due to the repeal of the statutory authority.

    Subpart J—Impact Aid Administrative Hearings and Judicial Review Under Section 8011 of the Act

    • Revising § 222.151 to remove an obsolete statutory reference and incorporate a statutory change lengthening the time period for filing a written request for an administrative hearing from 30 to 60 days.
    • Revising § 222.152 to remove obsolete statutory references.
    • Revising § 222.153 to update the addresses to which applicants must mail or deliver those administrative hearing requests. We also add an option for emailing the requests and note our recommendation that applicants elect mail or email delivery.
    • Revising § 222.159 to reflect the statutory change that an applicant has 30 working days to seek judicial review following an administrative hearing determination.

    Subpart K—Determinations Under Section 8009 of the Act

    • Revising §§ 222.161 and 222.163 to conform to a statutory change in section 8009(b)(1) of the Act that eliminated obsolete references to payments under the former Impact Aid law, Public Law 81-874. We also revise § 222.161(a) to reflect changes in section 8009(b)(1) of the Act relating to heavily impacted districts, and to delete a reference to a repealed provision regarding LEAs with high concentrations of children with severe disabilities.
    • Revising § 222.165 to incorporate a statutory change lengthening the time period for filing a written request for an administrative hearing from 30 to 60 days.[5]
    		 ”

    Significant impact

    See also: Significant regulatory action

    The Office of Management and Budget (OMB) deemed this rule economically significant pursuant to Executive Order 12866. An agency rule can be deemed a significant rule if it has had or might have a large impact on the economy, environment, public health, or state or local governments. The term was defined by E.O. 12866, which was issued in 1993 by President Bill Clinton.[1]

    Text of the rule

    The full text of the rule is available below:[1]

    See also

    External links

    Footnotes

    1. ↑ 1.0 1.1 1.2 1.3 1.4 1.5 1.6 1.7 Federal Register, "Impact Aid Program," June 11, 2015
    2. ↑ Josie Canales, James Frey, Cathy Walker, Sherry Freeland Walker, Suzanne Weiss and Anna West, Education Commission of the States, "No State Left Behind: The Challenges and Opportunities of ESEA 2001," accessed February 7, 2023
    3. ↑ U.S. Department of Education, "Individuals with Disabilities Education Act," accessed April 24, 2023
    4. ↑ Office of Elementary and Secondary Education, "Impact Aid Program," accessed April 25, 2023
    5. ↑ 5.0 5.1 Note: This text is quoted verbatim from the original source. Any inconsistencies are attributable to the original source.
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