CHAPTER 13-37
SPECIAL ASSISTANCE AND RELATED SERVICES
13-37-1 Children in need of special education or special education and related services.
13-37-1.1 Rules governing standards for special education.
13-37-1.2 Department as agency responsible for special education--Regulatory and coordinating authority.
13-37-1.3 Free education for special education children.
13-37-1.4 Appeal through civil action permitted.
13-37-2 Special education defined--Conformity to approved program where possible.
13-37-2.1 Surrogate parent defined.
13-37-3 13-37-3, 13-37-3.1. Repealed by SL 1975, ch 128, § 377
13-37-4 13-37-4. Repealed by SL 1995, ch 101, § 11
13-37-5 13-37-5. Repealed by omission from SL 1969, ch 58
13-37-5.1 13-37-5.1. Repealed by SL 1989, ch 151, § 1
13-37-6 13-37-6. Repealed by SL 1975, ch 128, § 377
13-37-7 13-37-7. Repealed by SL 1997, ch 88, § 5
13-37-8 13-37-8. Repealed by SL 1968, ch 51
13-37-8.1 13-37-8.1. Repealed by SL 1975, ch 128, § 377
13-37-8.2 13-37-8.2. Repealed by SL 1995, ch 101, § 12
13-37-8.3 13-37-8.3. Repealed by SL 1976, ch 122, § 7
13-37-8.4 Cost paid by school district.
13-37-8.5 13-37-8.5. Repealed by omission from SL 1969, ch 58, § 5
13-37-8.6 Costs of special education services--Sources--Provisions--Financial losses.
13-37-8.7 13-37-8.7, 13-37-8.8. Repealed by SL 1980, ch 134, §§ 1, 2
13-37-8.9 Mileage allowance in lieu of transportation for special education--Actual cost in lieu of mileage--Source of payment.
13-37-8.10 Crediting of state, local, and federal special education funds.
13-37-9 13-37-9 to 13-37-12. Repealed by SL 1968, ch 51
13-37-13 Expenditures for education of children in need in state-owned institutions.
13-37-14 13-37-14. Repealed by SL 1996, ch 99, § 5
13-37-14.1 13-37-14.1, 13-37-14.2. Repealed by SL 1995, ch 87, §§ 55, 56
13-37-15 13-37-15. Repealed by SL 1975, ch 128, § 377
13-37-16 District tax levy--Special education--School district special education fund.
13-37-16.1 13-37-16.1. Repealed by SL 1975, ch 128, § 377
13-37-16.2 Levy equalization.
13-37-16.3 Basis for adjustment to certain levies.
13-37-17 13-37-17. Repealed by SL 1975, ch 128, § 377
13-37-18 Costs and statistical information included in annual financial report.
13-37-19 13-37-19. Repealed by SL 1977, ch 136, § 2
13-37-20 Payment of claims for direct services.
13-37-20.1 13-37-20.1. Repealed by SL 1975, ch 128, § 377
13-37-21 13-37-21, 13-37-22. Repealed by SL 1976, ch 121, § 9
13-37-23 13-37-23. Repealed by SL 1975, ch 128, § 377
13-37-24 13-37-24 to 13-37-24.2. Repealed by SL 1995, ch 101, §§ 16 to 18
13-37-24.3 Repealed
13-37-24.4 13-37-24.4, 13-37-24.5. Repealed by SL 1993, ch 137, §§ 1, 2
13-37-24.6 13-37-24.6. Repealed by SL 1997, ch 103, § 1
13-37-25 13-37-25. Repealed by SL 1989, ch 147, § 1
13-37-26 13-37-26. Repealed by SL 1995, ch 101, § 19
13-37-27 Surrogate parent acting in place of parent--Immunity--Exceptions.
13-37-28 Definition of autism spectrum disorder.
13-37-28.1 Dyslexia defined.
13-37-29 Blind student defined for purposes of braille literary assessment and educational services.
13-37-30 Braille literary assessment and educational services for blind students.
13-37-31 Competency of braille instructors--Promulgation of rules.
13-37-32 13-37-32 to 13-37-34. Repealed by SL 1995, ch 101, §§ 20 to 22
13-37-35 13-37-35. Repealed by SL 1999, ch 90, § 1
13-37-35.1 Definitions.
13-37-35.2 Department to recalculate allocations for disability levels biennially.
13-37-36 13-37-36. Repealed by SL 1999, ch 90, § 3
13-37-36.1 School district special education fund statutory carryover.
13-37-36.2 Level five disability criteria.
13-37-36.3 Computation of state aid to districts for special education.
13-37-37 Monthly payment of state aid for special education.
13-37-38 13-37-38. Temporary and executed
13-37-39 13-37-39. Temporary and executed
13-37-40 Portion of appropriation set aside for extraordinary expenses.
13-37-40.1 Certification required for funding.
13-37-41 Establishing guidelines for expenditure of state aid for special education--Annual report.
13-37-42 Limitation on expenditure of funds set aside for extraordinary expenditures.
13-37-43 13-37-43. Temporary and executed
13-37-44 Reduction of district's aid for special education for excess balance in fund.
13-37-45 Allocation of undistributed appropriations.
13-37-46 Rules defining special education process--Appeal of local district's determinations--Hearing.
13-37-47 Promulgation of rules.
13-37-48 13-37-48. Repealed by SL 2005, ch 100, § 2.
13-37-48.1 13-37-48.1. Repealed by SL 2013, ch 79, § 16.
13-37-49 Record of public school child count subject to examination by department.
13-37-50 Overreporting child count data--Recovery of twice amount of state aid--Intentional overreporting as misdemeanor.
13-37-51 13-37-51. Repealed by SL 2013, ch 79, § 17.
13-37-52 Department may promulgate rules to define disabilities.
13-37-53 13-37-53. Repealed by SL 2013, ch 79, § 18.
13-37-54 Promulgation of rules for reallocation of state aid to special education.
13-37-55 Coordinated early intervening services.
13-37-56 Approval for early intervening services.
13-37-57 Annual report on early intervening services.
13-37-58 Promulgation of rules on early intervening services.
13-37-59 District with early intervening services ineligible for other funds.
13-37-60 Extraordinary Cost Oversight Board established.
13-37-61 Oversight board members--Terms.
13-37-1. Children in need of special education or special education and related services.
As used in this chapter, "children in need of special education or special education and related services" means any person under the age of twenty-one years who is a resident of the State of South Dakota and who, because of his educational needs as defined by the South Dakota Board of Education Standards in rules promulgated pursuant to chapter 1-26 and this chapter, is not adequately provided for through the usual facilities and services of the school and requires special education.
Source: SL 1955, ch 41, ch 12, § 4; SDC Supp 1960, § 15.3004 (1); SL 1961, ch 77, § 1; SL 1964, ch 44; SL 1966, ch 43; SL 1968, ch 51, § 1 (4); SL 1969, ch 58; SL 1975, ch 128, § 229; SL 1976, ch 121, § 1; SL 1988, ch 134, § 4; SL 1990, ch 195, § 1; SL 2017, ch 81, § 57.
13-37-1.1. Rules governing standards for special education.
The South Dakota Board of Education Standards may adopt rules, pursuant to chapter 1-26, governing standards for educational and noneducational programs, public and nonpublic, serving children in need of special education or special education and related services and children, ages birth through two, with developmental delays and severe disabilities; appeal procedures for disputes involving the placement or program of such children; and administration, funding and personnel associated with special education or special education and related services.
Source: SL 1955, ch 41, ch 2, § 5; SDC Supp 1960, § 15.0905 (13); SDCL § 13-1-30; SL 1975, ch 128, § 230; SL 1988, ch 134, § 5; SL 1989, ch 150, § 3; SL 1990, ch 195, § 1; SL 1996, ch 99, § 4; SL 2017, ch 81, § 57.
13-37-1.2. Department as agency responsible for special education--Regulatory and coordinating authority.
The Department of Education is hereby designated as the state agency with responsibility for the education of children in need of special education or special education and related services. In accordance with § 13-37-1.1, the department has regulatory and coordinating authority over any program within any state agency insofar as such programs pertain to the special education of children in need of special education or special education and related services.
Source: SL 1976, ch 120; SL 1988, ch 134, § 6; SL 1990, ch 195, § 1; SL 1996, ch 8, § 28; SL 2003, ch 272, § 63; SL 2010, ch 77, § 12.
13-37-1.3. Free education for special education children.
Each school district shall provide all of its resident children in need of special education or special education and related services, as defined in § 13-37-1, with a free appropriate public education, as defined in rules promulgated pursuant to chapter 1-26 by the South Dakota Board of Education Standards.
Source: SL 1996, ch 8, § 29; SL 2017, ch 81, § 57.
13-37-1.4. Appeal through civil action permitted.
Any party aggrieved by a decision of the Department of Education under this chapter may bring a civil action with respect to a due process complaint notice requesting a due process hearing under the Individuals with Disabilities Education Act, 20 U.S.C. § 1415(i)(2) (January 1, 2024). A civil action may be filed in either state or federal court without regard to the amount in controversy. The party bringing the action has thirty days from the date of the decision to file a civil action.
Source: SL 2024, ch 58, § 1.
13-37-2. Special education defined--Conformity to approved program where possible.
As used in this chapter, unless the context otherwise requires, "special education" means educational services and auxiliary services provided children in need of special education or special education and related services pursuant to the provisions of this chapter and shall include school instruction conforming as nearly as possible to the school program as defined in accreditation rules under duly qualified special education teachers to the extent that the child in need of special education or special education and related services is capable of profiting.
Source: SL 1955, ch 41, ch 12, § 4; SDC Supp 1960, § 15.3004 (2); SL 1964, ch 44; SL 1966, ch 43; SL 1968, ch 51, § 1 (1); SL 1969, ch 58; SL 1975, ch 128, § 231; SL 1976, ch 121, § 2.
13-37-2.1. Surrogate parent defined.
As used in this chapter, the term, surrogate parent, means any individual assigned by the district to act in place of the parent of a child in need of special education when the school district cannot identify or locate the parent or the child is a ward of the state.
Source: SL 1989, ch 150, § 1; SL 1990, ch 195, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2010, ch 77, § 13; SL 2013, ch 79, § 6.
13-37-8.4. Cost paid by school district.
The cost of special education shall be the responsibility of the school district wherein the child in need of special education or special education and related services has school residence through its source of revenue provided in § 13-37-16.
Source: SL 1968, ch 51, § 5 (3); SL 1969, ch 58; SL 1976, ch 122, § 2.
13-37-8.6. Costs of special education services--Sources--Provisions--Financial losses.
The costs for special education and related services, as defined in rules promulgated by the South Dakota Board of Education Standards pursuant to chapter 1-26, may be covered and available from accident and health insurers, nonprofit medical and surgical plans, health maintenance organizations, fraternal benefit societies, or federally reimbursed program sources. If a school district chooses to access these funds through the use of parent's insurance proceeds, the following provisions apply:
(1) Expenses for special education and related services may not be borne by the parent;
(2) The filing of claims may not delay the education of a child;
(3) The school district is responsible for payment of a deductible amount and for any advance payment required until the time a claim is paid;
(4) Parental consent shall be obtained to file an insurance claim;
(5) The school district shall inform parents of any potential financial losses that they could incur; and
(6) If parents would incur a financial loss, the use of parent's insurance proceeds must be voluntary.
For purposes of this section only, financial losses include a decrease in available lifetime coverage or any other benefit under an insurance policy, an increase in premiums under an insurance policy, or an out-of-pocket expense such as the payment of a deductible amount incurred in filing a claim.
Source: SDC Supp 1960, § 15.3004 (6), (14) as added by SL 1966, ch 43; SDCL §§ 13-37-9, 13-37-22; SL 1968, ch 51, §§ 5 (5), 8; SL 1968, ch 51, § 5 (4) as amended by SL 1969, ch 58; SL 1975, ch 128, § 235; SL 1976, ch 121, § 3; SL 1988, ch 146; SL 1995, ch 101, § 13; SL 1996, ch 123; SL 2017, ch 81, § 57.
13-37-8.9. Mileage allowance in lieu of transportation for special education--Actual cost in lieu of mileage--Source of payment.
If appropriate bus service is not provided by a school district, the parents or guardian of any child in need of special education or special education and related services, when legally assigned, are eligible for necessary transportation compensation for their child as determined by the individualized education program team. In no case may the mileage reimbursement rate be less than the rate established pursuant to § 3-9-1. If appropriate to maintain family bonding and if it is not practical to transport the child, mileage may be paid to the parents for trips to the facility where services are being provided to the child. In lieu of compensation for mileage, a district may pay the actual cost of transportation by common carrier or of bus service provided by contract with the facility in which the child is enrolled. The district wherein a child in need of special education or special education and related services has school residence shall pay the transportation expenses from the district's special education fund.
Source: SDC Supp 1960, § 15.3004 (6) as added by SL 1963, ch 82, § 2; SL 1964, ch 44; SL 1966, ch 43; SDCL § 13-37-10; SL 1968, ch 51, § 5 (8); SL 1968, ch 51, § 5 (7) as amended by SL 1969, ch 58; SL 1971, ch 122, § 2; SL 1974, ch 136, § 5; SL 1977, ch 137; SL 1978, ch 116, § 6; SL 1981, ch 144, § 2; SL 1984, ch 122; SL 1990, ch 195, § 1; SL 1991, ch 146, § 2; SL 2007, ch 105, § 1.
13-37-8.10. Crediting of state, local, and federal special education funds.
Payments from state and local sources received by a school district for special education, including any state aid to education funds based upon tuition paid for children in need as provided in chapter 13-37, shall be credited to the special education fund of the school district. Any payment from federal sources received by a school district for special education may be credited to either the special education fund or the capital outlay fund for any equipment purchase for special education approved by the state Department of Education.
Source: SL 1968, ch 51, § 5 (8) as added by SL 1969, ch 58; SL 1974, ch 136, § 6; SL 2010, ch 91, § 1, eff. Feb. 16, 2010; SL 2015, ch 89, § 22.
13-37-13. Expenditures for education of children in need in state-owned institutions.
The secretary of the Department of Education or any school district may expend any public funds under the provisions of this chapter for the education of children in need enrolled in any state-owned institution, including transportation as provided in § 13-37-8.9. The provisions of this chapter may apply to approved programs and services provided by state universities and colleges, and for assignment to institutions outside of South Dakota for services not available within the state.
Source: SL 1955, ch 41, ch 12, § 4; SDC Supp 1960, § 15.3004 (8), (9); SL 1964, ch 44; SL 1966, ch 43; SDCL, § 13-37-6; SL 1968, ch 51, § 3; SL 1969, ch 58; SL 1975, ch 128, § 236; SL 2000, ch 88, § 1; SL 2003, ch 272, § 63.
13-37-16. District tax levy--Special education--School district special education fund.
For taxes payable in 2025, and each year thereafter, the school board shall levy no more than one dollar and forty-eight and eight-tenths cents per thousand dollars of taxable valuation, as a special levy in addition to all other levies authorized by law for the amount so determined to be necessary, and the levy must be spread against all of the taxable property of the district. The proceeds derived from the levy constitute a school district special education fund of the district for the payment of costs for the special education of all children in need of special education or special education and related services who reside within the district pursuant to the provisions of §§ 13-37-8.4 to 13-37-8.10, inclusive. The levy in this section is based on valuations where the median level of assessment represents eighty-five percent of market value as determined by the Department of Revenue. The total amount of taxes that would be generated at the levy pursuant to this section is considered local effort. Money in the special education fund may be expended for the purchase or lease of any assistive technology that is directly related to special education and specified in a student's individualized education plan. This section does not apply to real property improvements.
Source: SDC Supp 1960, § 15.3004 (12) as added by SL 1965, ch 53, § 2; SL 1966, ch 43; SL 1968, ch 51, § 6; SL 1969, ch 58; SL 1975, ch 128, § 239; SL 1976, ch 122, § 3; SL 1989, ch 87, § 15N; SL 1990, ch 195, § 1; SL 1995, ch 101, § 14; SL 1998, ch 96, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 82; SL 2008, ch 78, § 4; SL 2011, ch 1 (Ex. Ord. 11-1), § 161, eff. Apr. 12, 2011; SL 2013, ch 79, § 7; SL 2014, ch 91, § 1; SL 2015, ch 95, § 1; SL 2016, ch 93, § 1; SL 2017, ch 76, § 4; SL 2018, ch 92, § 3; SL 2019, ch 85, § 1; SL 2020, ch 59, § 1; SL 2021, ch 73, § 13; SL 2021, ch 78, § 3; SL 2022, ch 41, § 3; SL 2023, ch 30, § 3; SL 2024, ch 59, § 3.
13-37-16.2. Levy equalization.
If local effort increases on a statewide aggregate basis by a greater percentage than local need on a statewide aggregate basis from any one year to the next, for the following year, the levy specified in subdivision 13-37-35.1(7) shall be reduced proportionally so that the percentage increase in local effort on a statewide aggregate basis equals the percentage increase in need on a statewide aggregate basis.
Source: SL 1998, ch 97, § 3; SL 2001, ch 79, § 3; SL 2013, ch 79, § 8.
13-37-16.3. Basis for adjustment to certain levies.
Any adjustments in the levy specified in subdivision 13-37-35.1(7) made pursuant to § 13-37-16.2 shall be based on maintaining the relationship between statewide local effort as a percentage of statewide local need in the fiscal year succeeding the fiscal year in which the adjustment is made. However, for fiscal year 2014, and each year thereafter, if the levy specified in subdivision 13-37-35.1(7) is not adjusted to maintain this relationship, the funding allocation for each disability level as defined in § 13-37-35.1 shall be reduced proportionally to maintain the relationship between statewide local effort as a percentage of statewide local need.
Source: SL 2001, ch 79, § 2; SL 2013, ch 79, § 9.
13-37-18. Costs and statistical information included in annual financial report.
Special education costs and statistical information shall be included in the annual financial report as provided in § 13-13-37.
Source: SL 1976, ch 122, § 4; SL 1977, ch 136, § 1; SL 1980, ch 134, § 3; SL 1995, ch 101, § 15; SL 2013, ch 79, § 10.
13-37-20. Payment of claims for direct services.
Agencies or individuals providing a service directly to children in need of special education or special education and related services under the provisions of this chapter shall be authorized to recover authorized costs from the school district special education fund on a monthly basis.
Source: SDC Supp 1960, § 15.3004 (14) as added by SL 1966, ch 43; SL 1968, ch 51, § 8; SL 1969, ch 58; SL 1975, ch 128, § 242; SL 1976, ch 121, § 5.
13-37-24.3. Repealed.
Source: SL 1990, ch 133, § 1; SL 2003, ch 272, § 63; SL 2010, ch 77, § 14; SL 2021, ch 73, § 21.
13-37-27. Surrogate parent acting in place of parent--Immunity--Exceptions.
The surrogate parent may act in place of the parent in all matters relating to the identification, evaluation, and educational placement of a child in need; and to the provision of a free appropriate public education to the child in need. The surrogate parent is immune from suit when acting in the capacity of a surrogate parent except for acts or omissions which are grossly negligent, wanton, reckless, or malicious.
Source: SL 1989, ch 150, § 2.
13-37-28. Definition of autism spectrum disorder.
For the purposes of this chapter, the Department of Education shall use the definition of autism spectrum disorder contained in the Diagnostic and Statistical Manual of Mental Disorders, Fifth Edition, published by the American Psychiatric Association to define autism spectrum disorder in rules promulgated pursuant to chapter 1-26.
Source: SL 1990, ch 134; SL 1996, ch 125; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2014, ch 92, § 2.
13-37-28.1 . Dyslexia defined.
For the purposes of this chapter, dyslexia is a learning disability that is neurological in origin. It is characterized by difficulties with accurate or fluent word recognition and by poor spelling and decoding abilities. These difficulties typically result from a deficit in the phonological component of language that is often unexpected in relation to other cognitive abilities and the provision of effective classroom instruction. Secondary consequences may include problems in reading comprehension and reduced reading experience that can impede the growth of vocabulary and background knowledge.
Source: SL 2020, ch 60, § 1.
13-37-29. Blind student defined for purposes of braille literary assessment and educational services.
For the purposes of § 13-37-30, a blind student is any individual who is eligible for special education services and who has a visual acuity of 20/200 or less in the better eye with correcting lenses or has a limited field of vision such that the widest diameter subtends an angular distance of no greater than twenty degrees or has a medically indicated expectation of visual deterioration.
For the purposes of § 13-37-30, braille is the system of reading and writing through touch commonly known as standard English braille.
Source: SL 1991, ch 152, § 1.
13-37-30. Braille literary assessment and educational services for blind students.
In developing an individualized written education program for each blind student the presumption shall be that proficiency in braille reading and writing is essential for the student to achieve satisfactory educational progress. The assessment required for each such student shall include a braille skills inventory, including a statement of strengths and deficits. Braille instruction and use are not required by this section if, in the course of developing the student's individualized education program, all members of the team concur that the student's visual impairment does not affect reading and writing performance commensurate with ability. Nothing in this section requires the exclusive use of braille if other special education services are appropriate to the student's educational needs. The provision of other appropriate services does not preclude braille use or instruction.
Source: SL 1991, ch 152, § 2.
13-37-31. Competency of braille instructors--Promulgation of rules.
The South Dakota Board of Education Standards shall promulgate rules pursuant to chapter 1-26 governing the determination of the competency of braille instructors according to their education or experience.
Source: SL 1991, ch 152, § 3; SL 2017, ch 81, § 57.
13-37-35.1. Definitions.
Terms used in chapter 13-37 mean:
(1) "Level one disability," a mild disability;
(2) "Level two disability," cognitive disability or emotional disorder;
(3) "Level three disability," hearing impairment, deafness, visual impairment, deaf-blindness, orthopedic impairment, or traumatic brain injury;
(4) "Level four disability," autism;
(5) "Level five disability," multiple disabilities;
(5A) "Level six disability," prolonged assistance;
(6) "Index factor," is the annual percentage change in the consumer price index for urban wage earners and clerical workers as computed by the Bureau of Labor Statistics of the United States Department of Labor for the year before the year immediately preceding the year of adjustment or three percent, whichever is less;
(7) "Local effort," must be calculated for taxes payable in 2025 and thereafter using a special education levy of one dollar and twenty-eight and eight-tenths cents per one thousand dollars of valuation;
(8) "Allocation for a student with a level one disability," for the school fiscal year beginning July 1, 2024, is $7,556.00. For each school year thereafter, the allocation for a student with a level one disability must be the previous fiscal year's allocation for the child increased by the index factor;
(9) "Allocation for a student with a level two disability," for the school fiscal year beginning July 1, 2024, is $16,553.00. For each school year thereafter, the allocation for a student with a level two disability must be the previous fiscal year's allocation for the child increased by the index factor;
(10) "Allocation for a student with a level three disability," for the school fiscal year beginning July 1, 2024, is $22,854.00. For each school year thereafter, the allocation for a student with a level three disability must be the previous fiscal year's allocation for the child increased by the index factor;
(11) "Allocation for a student with a level four disability," for the school fiscal year beginning July 1, 2024, is $17,831.00. For each school year thereafter, the allocation for a student with a level four disability must be the previous fiscal year's allocation for the child increased by the index factor;
(12) "Allocation for a student with a level five disability," for the school fiscal year beginning July 1, 2024, is $36,582.00. For each school year thereafter, the allocation for a student with a level five disability must be the previous fiscal year's allocation for the child increased by the index factor;
(12A) "Allocation for a student with a level six disability," for the school fiscal year beginning July 1, 2024, is $11,692.00. For each school year thereafter, the allocation for a student with a level six disability must be the previous fiscal year's allocation for the child increased by the index factor;
(13) "Child count," is the number of students in need of special education or special education and related services according to criteria set forth in rules promulgated pursuant to §§ 13-37-1.1 and 13-37-46 submitted to the Department of Education;
(14) "Fall enrollment," the number of kindergarten-through-twelfth-grade students enrolled in all schools operated by the school district on the last Friday of September of the previous school year minus the number of students for whom the district receives tuition, except any nonresident student who is in the care and custody of a state agency and is attending a public school and any student for whom tuition is being paid pursuant to § 13-28-42.1, plus the number of students for whom the district pays tuition;
(15) "Nonpublic school," a sectarian organization or entity accredited by the secretary of education for the purpose of instructing children of compulsory school age. This definition excludes any school that receives a majority of its revenues from public funds;
(16) "Nonpublic fall enrollment," the number of children under age eighteen, who are approved for alternative instruction pursuant to § 13-27-3 on the last Friday of September of the previous school year plus:
(a) For nonpublic schools located within the boundaries of a public school district with a fall enrollment of six hundred or more on the last Friday of September of the previous school year, the number of kindergarten-through-twelfth-grade students enrolled on the last Friday of September of the previous regular school year in all nonpublic schools located within the boundaries of the public school district;
(b) For nonpublic schools located within the boundaries of a public school district with a fall enrollment of less than six hundred on the last Friday of September of the previous school year, the number of resident kindergarten-through-twelfth-grade students enrolled on the last Friday of September of the previous school year in all nonpublic schools located within this state;
(17) "Special education fall enrollment," fall enrollment plus nonpublic fall enrollment;
(18) "Local need," an amount to be determined as follows:
(a) Multiply the special education fall enrollment by 0.1062 and multiply the result by the allocation for a student with a level one disability;
(b) Multiply the number of students having a level two disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level two disability;
(c) Multiply the number of students having a level three disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level three disability;
(d) Multiply the number of students having a level four disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level four disability;
(e) Multiply the number of students having a level five disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level five disability;
(f) Multiply the number of students having a level six disability as reported on the child count for the previous school fiscal year by the allocation for a student with a level six disability;
(g) When calculating local need at the statewide level, include the amount set aside for extraordinary costs defined in § 13-37-40;
(h) When calculating local need at the statewide level, include the amount set aside for the South Dakota School for the Blind and Visually Impaired;
(i) Sum the results of subdivisions (18)(a) to (h), inclusive;
(19) "Effort factor," the school district's special education tax levy in dollars per thousand divided by $1.288. The maximum effort factor is 1.0.
Source: SL 1999, ch 90, § 2; SL 2000, ch 50, § 2; ch 84, § 3; SL 2001, ch 85, § 2; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2004, ch 131, § 1; SL 2004, ch 132, § 1; SL 2005, ch 60, § 2; SL 2006, ch 84, § 1; SL 2008, ch 78, § 5; SL 2008, ch 84, § 1; SL 2009, ch 87, § 1; SL 2010, ch 82, § 2; SL 2011, ch 98, § 1; SL 2012, ch 99, § 1; SL 2013, ch 79, § 11; SL 2014, ch 91, § 2; SL 2015, ch 95, § 2; SL 2016, ch 93, § 2; SL 2017, ch 76, § 5; SL 2018, ch 92, § 4; SL 2019, ch 85, § 2; SL 2020, ch 59, § 2; SL 2021, ch 78, § 4; SL 2022, ch 41, § 4; SL 2023, ch 30, § 4; SL 2024, ch 59, § 4.
13-37-35.2. Department to recalculate allocations for disability levels biennially.
The Department of Education shall recalculate the amounts of the allocations for the disability levels defined in § 13-37-35.1. The recalculation shall be based on statewide average expenditures as reported to the Department of Education in school district annual reports by disability for the previous three school fiscal years. A recalculation shall take place in fiscal year 2020 and every two years thereafter, and the recalculated rates take effect in the year following a recalculation.
Source: SL 2002, ch 91, § 1; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2019, ch 86, § 1.
13-37-36.1. School district special education fund statutory carryover.
To establish the school district special education fund statutory carryover, deduct from the total ending fund balance the amount of Title VIII of the Elementary and Secondary Education Act funds receipted or transferred to the special education fund.
Source: SL 1997, ch 89, § 4; SL 2013, ch 79, § 12.
13-37-36.2. Level five disability criteria.
For the purpose of calculating state aid pursuant to this chapter, a level five disability shall meet criteria for at least two disability categories in levels two to four, inclusive, excluding the disability of deaf-blindness.
Source: SL 1999, ch 90, § 10; SL 2000, ch 87, § 1; SL 2014, ch 92, § 3.
13-37-36.3. Computation of state aid to districts for special education.
The secretary of the Department of Education shall compute state aid for special education for each school district according to the following calculations:
(1) Calculate the local need of a school district;
(2) State aid for special education is:
(a) Local need minus local effort, the difference multiplied by the effort factor; or
(b) Zero if the calculation in (a) is a negative number.
Source: SL 1999, ch 90, § 4; SL 2003, ch 272, § 63.
13-37-37. Monthly payment of state aid for special education.
Payment from funds provided for state aid for special education in any school fiscal year shall be made in twelve monthly installments on or about the thirtieth of each month. For the period July first through December thirty-first, the total of the six payments shall be one-half of the local need of the current school fiscal year less the local effort for the period July first through December thirty-first. For the period January first through June thirtieth, the total of the six payments shall be one-half of local need of the current school fiscal year less the local effort for the period January first through June thirtieth.
Source: SL 1995, ch 101, § 3.
13-37-40. Portion of appropriation set aside for extraordinary expenses.
Subject to the limitation in § 13-37-42, the secretary of the Department of Education shall, for school fiscal year 2014 and each year thereafter, set aside four million dollars of the state aid to districts for special education appropriation for extraordinary expenses incurred in providing special education programs or services to one or more children with disabilities, with expenditures to be made as recommended by an oversight board and approved by the secretary of the Department of Education. Any funds not expended or obligated pursuant to this section shall not be subject to reversion pursuant to § 4-8-19. The total amount set aside for extraordinary expenses each fiscal year plus the total amount not reverted from previous fiscal years may not exceed five million five hundred thousand dollars.
The amount appropriated for extraordinary expenses shall be recalculated at the same time as the amount of the allocations for disability levels as provided in § 13-37-35.2.
Source: SL 1995, ch 101, § 6; SL 1998, ch 98, § 12; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2013, ch 79, § 13.
13-37-40.1. Certification required for funding.
A school district is not eligible for funding from the money set aside in § 13-37-40 unless the school district certifies to the secretary of education that its ending special education fund balance will not exceed ten percent of its special education expenditures for the current fiscal year.
Source: SL 1996, ch 108, § 4; SL 1998, ch 98, § 4; SL 2004, ch 17, § 28; SL 2013, ch 79, § 14; SL 2021, ch 73, § 14.
13-37-41. Establishing guidelines for expenditure of state aid for special education--Annual report.
The secretary of the Department of Education shall establish guidelines for the application, approval, distribution, and expenditure of these funds and shall report annually to the Legislature on such expenditures.
Source: SL 1995, ch 101, § 7; SL 2003, ch 272, § 63.
13-37-42. Limitation on expenditure of funds set aside for extraordinary expenditures.
The amount set aside for extraordinary expenses may not be expended until the allocation of local need has been determined for each district and no more than one half of the amount set aside may be expended before January first of each year.
Source: SL 1995, ch 101, § 8.
13-37-44. Reduction of district's aid for special education for excess balance in fund.
A school district's state aid for special education as calculated pursuant to § 13-37-36.1 shall be reduced by the amount that its ending special education fund balance exceeds twenty-five percent of its special education expenditures for the prior fiscal year or one hundred thousand dollars, whichever is greater, if the school district did not receive money set aside in § 13-37-40 during the prior fiscal year; or the amount that its ending special education fund balance exceeds ten percent of its special education expenditures for the prior fiscal year if the school district received money set aside in § 13-37-40 during the prior fiscal year.
Source: SL 1995, ch 101, § 9A; SL 1996, ch 108, § 3; SL 1998, ch 98, § 5; SL 1999, ch 90, § 8; SL 2013, ch 79, § 15; SL 2021, ch 73, § 15.
13-37-45. Allocation of undistributed appropriations.
Any funds appropriated as state aid for special education that are not distributed according to § 13-37-36.3 shall be used to fund any shortfall of the appropriation provided for in § 13-13-73. The remaining funds shall be allocated by the secretary of the Department of Education for the purposes specified in § 13-37-40. The secretary shall report to the Governor by January seventh of each year, the amount of state aid necessary to fully fund the special education formula in the current year. If a shortfall in the state aid appropriation for special education exists that cannot be covered by § 13-13-73, the Governor shall inform the Legislature and provide a proposal to eliminate the shortfall.
Source: SL 1995, ch 101, § 9B; SL 1997, ch 103, § 3; SL 2003, ch 272, § 63; SL 2021, ch 73, § 16.
13-37-46. Rules defining special education process--Appeal of local district's determinations--Hearing.
The secretary of the Department of Education shall promulgate and review rules which further define special education processes regarding student identification and the placement committee process. Any appeal of a local district's determination relating to special education or special education and related services shall be referred to the secretary of the Department of Education. The hearing shall be conducted by the secretary in accordance with the contested case provisions of chapter 1-26.
Source: SL 1995, ch 101, § 10; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2019, ch 87, § 3.
13-37-47. Promulgation of rules.
The secretary of the Department of Education may promulgate rules to implement the provisions of §§ 13-37-35.1 to 13-37-47, inclusive.
Source: SL 1995, ch 101, § 24; SL 2003, ch 272, § 63.
13-37-49. Record of public school child count subject to examination by department.
Any records related to the reporting of the child count of a public school district shall be subject to examination by the Department of Education at all times.
Source: SL 1999, ch 90, § 5; SL 2003, ch 272, § 63.
13-37-50. Overreporting child count data--Recovery of twice amount of state aid--Intentional overreporting as misdemeanor.
If, in the department's examination of the child count, it is determined that the data was overreported, the department shall recover from the district's special education fund twice the amount of state aid overpaid as a result of the overreporting. Upon recovery of the overpayment, the department shall deposit the overpayment into the state general fund. If the overreporting occurred with the intent to increase the amount of state aid received by overreporting, the individual responsible for the overreporting may be charged with a Class 1 misdemeanor as provided in § 13-8-44, with the maximum penalty as defined in § 22-6-2.
Source: SL 1999, ch 90, § 6.
13-37-52. Department may promulgate rules to define disabilities.
The Department of Education may promulgate rules pursuant to chapter 1-26 to define the various disabilities in this chapter.
Source: SL 1999, ch 90, § 11; SL 2003, ch 272, § 63.
13-37-54. Promulgation of rules for reallocation of state aid to special education.
The Department of Education may promulgate rules pursuant to chapter 1-26 to provide for the reallocation of state aid to special education as provided for in § 13-28-9.1.
Source: SL 2001, ch 84, § 3; SL 2003, ch 272 (Ex. Ord. 03-1), § 63; SL 2013, ch 79, § 19.
13-37-55. Coordinated early intervening services.
Up to fifteen percent of the local need as defined in subdivision 13-37-35.1(18) may be used to develop and implement coordinated, early intervening services for students in kindergarten through grade twelve who are not currently identified as needing special education or special education and related services, but who need additional academic and behavioral interventions to succeed in a general education environment to prevent them from being identified as having a special education disability.
Coordinated, early intervening services include:
(1) Professional development for teachers and other school staff to enable them to deliver scientifically-based academic instruction and behavioral interventions, including scientifically-based literacy instruction, and, if appropriate, instruction on the use of adaptive and instructional software; and
(2) Providing educational and behavioral evaluations, services and supports, including scientifically-based literacy instruction.
Source: SL 2013, ch 79, § 1.
13-37-56. Approval for early intervening services.
A school district seeking to use funds pursuant to § 13-37-55 shall apply for approval for the use of such funds from the Department of Education on forms provided by the department.
Source: SL 2013, ch 79, § 2.
13-37-57. Annual report on early intervening services.
Any school district that uses funds pursuant to § 13-37-55 shall annually report to the Department of Education on:
(1) The number of students who receive coordinated, early intervening services; and
(2) The number of students who received early intervening services, and who subsequently receive special education or special education and related services within two years after receiving the coordinated, early intervening services.
Source: SL 2013, ch 79, § 3.
13-37-58. Promulgation of rules on early intervening services.
The Board of Education Standards shall promulgate rules pursuant to chapter 1-26 establishing the application process, the application timelines, the criteria the department will use in approving a district's use of special education funds pursuant to § 13-37-55, and the collection of data on children served pursuant to § 13-37-57.
Source: SL 2013, ch 79, § 4; SL 2017, ch 81, § 57.
13-37-59. District with early intervening services ineligible for other funds.
A school district that provides early intervening services pursuant to § 13-37-55 is not eligible for funding from the money set aside pursuant to § 13-37-40 within a period of three years following the expenditure of such funds.
Source: SL 2013, ch 79, § 5.
13-37-60. Extraordinary Cost Oversight Board established.
There is hereby established an Extraordinary Cost Oversight Board within the Department of Education. The board shall review all school district requests for extraordinary cost funds as provided in § 13-37-40. The board shall meet at least once a year and recommend to the secretary of education those school districts that should be approved for extraordinary cost fund expenditures and those school districts that should not be approved for extraordinary cost fund expenditures. The secretary has the final authority to approve or deny extraordinary cost fund expenditures.
Source: SL 2019, ch 87, § 1.
13-37-61. Oversight board members--Terms.
The oversight board established in § 13-37-60 shall consist of seven members. The membership shall include one member of the Legislature appointed by the Executive Board of the Legislative Research Council, and six members appointed by the secretary of education. The members appointed by the secretary shall include representatives from each of the following:
(1) The Department of Education;
(2) A school district with a fall enrollment of six hundred or more;
(3) A school district with a fall enrollment of more than two hundred, but less than six hundred; and
(4) A school district with a fall enrollment of two hundred or less.
The secretary shall use a staggered appointment schedule when appointing members, and no member may serve on the board for more than five years. The secretary shall also appoint alternate board members to serve in place of any board member representing a school district who may have a conflict of interest. An alternate shall serve the same term as the equivalent board appointee.
Source: SL 2019, ch 87, § 2.
