[Federal Register Volume 62, Number 12 (Friday, January 17, 1997)]
[Rules and Regulations]
[Pages 2565-2579]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-888]
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DEPARTMENT OF DEFENSE
Office of the Secretary
32 CFR Part 57
[DoD Instruction 1342.12]
Provision of Early Intervention and Special Education Services to
Eligible DOD Dependents in Overseas Areas
AGENCY: Department of Defense.
ACTION: Final rule.
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SUMMARY: Prior to 1991, the Department of Defense Dependents Schools
(DoDDS) was required by the ``Defense Dependent's Education Act of
1978,'' as amended, to adhere to the provisions of the ``Education of
All Handicapped Children Act.'' With the enactment of ``Individuals
with Disabilities Education Act Amendments of 1991,'' the Department of
Defense was required to modify its existing special education program
for children with disabilities, ages 3 through 21, and to provide early
intervention services to children birth through 2 years. This final
rule assigns responsibility for the implementation of the Act to the
Under Secretary of Defense for Personnel and Readiness, reflecting a
reorganization of the Department of Defense; assigns responsibilities
for duties previously assigned to Regional Directors to Area
Superintendents, reflecting a reorganization of the DoDDS; requires DoD
to provide early intervention services to children with disabilities
from birth through 2 years of age, requires DoDDS to extend special
education services to students from 3 through 21 years of age rather
than from 5 through 21; expands the categories of disability to include
both autism and traumatic brain injury; expands special education
services to include both assistive technology and transition; expands
the role of the DoD Coordinating Committee to include early
intervention as well as special education and related services;
establishes a DoD Inter-Component Coordinating Council on Early
Intervention; expands the definition section to include terminology not
contained in the previous part; and transfers the administrative
responsibility for conducting hearings pursuant to this rule to the
Defense Office of Hearings and Appeals.
EFFECTIVE DATE: March 12, 1996.
FOR FURTHER INFORMATION CONTACT: Dr. Rebecca Posante, DOD, Office of
Family Policy, 4015 Wilson Blvd, BCT #3, Arlington, VA 22203-5190, 703-
696-5734.
SUPPLEMENTARY INFORMATION: On May 31, 1995 (60 FR 28362), the
Department of Defense published a proposed rule. Written comments were
invited and due by July 31, 1995. In response to this invitation, six
individuals and organizations submitted comments. In addition, pursuant
to a notice appearing in the Federal Register on July 13, 1995 (60 FR
36081), DoD conducted a public hearing concerning the proposed rule on
August 4, 1995. All written comments and the transcript of the public
hearing are available for public inspection in the DoD Office of Family
Policy at the above address.
The Office of the Secretary of Defense has carefully considered the
views of the public as reflected in the written comments and testimony
at the public hearing. A description of these views and a discussion of
the Department's response to them follow.
General. One commenter noted that the proposed rule did not contain
a reference to 29 U.S.C. 794, Section 504 of the Rehabilitation Act of
1973, as amended. This section does not apply to persons outside of the
United States. Therefore, the final rule will not include a reference
to it.
The same commenter noted that reference should be made to the
Architectural Barriers Act of 1968. This act is implemented in other
regulatory guidance, and therefore does not require reference in this
final rule.
One commenter recommended that consideration be given to
consolidating the DoD Instructions that pertain to the
[[Page 2566]]
Department's overseas and domestic schools' special education and
related services programs. The underlying statutory bases are different
for the DoD domestic and overseas schools and their service delivery
models are different. Therefore, the Department will maintain separate
regulatory guidance.
Section 57.3. One commenter recommended that the final rule include
the term ``psychotherapy'' in the definition of psychological services.
The final rule uses the definition from the U.S. Department of
Education regulation regarding special education. That definition does
not contain the term ``psychotherapy;'' therefore, this recommendation
was not accepted.
Section 57.3. One commenter requested that the reference to early
intervention provided under the supervision of a military health
department be changed to acknowledge that early intervention services
are not necessarily health or medical in nature. The final rule will
not incorporate this suggestion since the assignment of early
intervention to the military medical departments was accomplished for
organizational efficiency.
The same commenter recommended that reference in the definitions to
``medically related services'' might confuse the supportive and
educational nature of occupational therapy in schools and perpetuate a
medical model of services. The final rule will not incorporate this
recommendation. Present practice in the DoD includes occupational
therapy and some other types of related services under the heading of
medically related services because these responsibilities were assigned
to the military medical departments. The Department does not believe
that this has resulted in the use of the medical model in the provision
of medically related services.
Appendix A, Section C.1.M. One commenter noted that the definition
for ``developmental delay'' contained in the proposed rule included two
criteria that were not equivalent. In order to clarify the intent of
the criteria, the definition was changed to the following. ``C.1. The
child is experiencing a developmental delay as measured by diagnostic
instruments and procedures of 2 standard deviations below the mean in
at least one area, or by a 25 percent delay in at least one area on
assessment instruments that yield scores in months, or a developmental
delay of 1.5 standard deviations below the mean in two or more areas,
or by a 20 percent delay on assessment instruments that yield scores in
months in two or more of the following areas of development: cognitive,
physical, communication, social or emotional, or adaptive.''
Appendix B, Section B.1.(e). One commenter recommended that the
term ``education'' be defined for students with disabilities to
delineate clearly that this is a broad concept including socialization
and life skills for more involved students. The Final Rule will not
further define this term since DoD guidance and practice include the
concept of education in the broadest sense of the term.
Appendix B, Section 4. A commenter noted that the frequency of the
reevaluation process should not be limited to every three years, but
should occur each year. This section in the proposed rule states that
``a reevaluation for eligibility must occur at least every three years,
or more frequently.'' Evaluations to determine the need for services
may be completed at any time, and progress reports on goals and
objectives must be developed at each annual review. The final rule
follows the U.S. Department of Education regulation regarding
reevaluation. Therefore, this recommendation will not be incorporated
in the final rule.
Appendix C, Appendix D, and Appendix E. One commenter recommended
expanding the membership on the National Advisory Panel on the
Education of Dependents with Disabilities, the DoD Coordinating
Committee on Early Intervention, Special Education and Related
Services, and the DoD Inter-Component Coordinating Council on Early
Intervention to include individuals who are knowledgeable of early
intervention, special education, and related services in the States and
who have experience in providing those services to children and their
families. The proposed rule conformed to the statutory requirements of
membership. Therefore, the membership of the committees and panel has
not been changed in the final rule.
Executive Order 12866, ``Regulatory Planning and Review''
It has been determined that this final rule will not be significant
as defined by Executive Order 12866.
Public Law 96-354, ``Regulatory Flexibility Act'' (5 U.S.C. Chapter
6)
It has been determined that this final rule will not have a
significant economic impact on substantial numbers of small entities
because it affects only eligible DoD dependents in overseas areas.
Public Law 96-511, ``Paperwork Reduction Act'' (44 U.S.C. Chapter
44)
It has been certified that this final rule will not impose any
reporting and recordkeeping requirements under the Paperwork Reduction
Act of 1995.
List of Subjects in 32 CFR Part 57
Education of individuals with disabilities, Elementary and
secondary education, Government employees, Military personnel.
Accordingly, 32 CFR part 57 is revised to read as follows:
PART 57--PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION
SERVICES TO ELIGIBLE DOD DEPENDENTS IN OVERSEAS AREAS
Sec.
57.1 Purpose.
57.2 Applicability and scope.
57.3 Definitions.
57.4 Policy.
57.5 Responsibilities.
57.6 Procedures.
Appendix A to part 57--Procedures for the Provision of Early
Intervention Services for Infants and Toddlers with Disabilities and
their Families
Appendix B to part 57--Procedures for Education Programs and
Services for Children with Disabilities, Aged 3 to 21, Inclusive
Appendix C to part 57--The National Advisory Panel (NAP) on the
Education of Dependents with Disabilities
Appendix D to part 57--DoD Coordinating Committee on Early
Intervention, Special Education, and Medically Related Services
Appendix E to part 57--DoD Inter-Component Coordinating Council
(ICC) on Early Intervention
Appendix F to part 57--Mediation and Hearing Procedures
Authority: 20 U.S.C. 921 and 1400.
Sec. 57.1 Purpose.
This part:
(a) Implement policy and update responsibilities and procedures
under 20 U.S.C. 921-932, 20 U.S.C. 1400 et seq., DoD Directive 1342.6
\1\, and DoD Directive 1342.13 \2\ for providing the following:
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
\2\ See footnote 1 to Sec. 57.1(a).
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(1) A free appropriate public education (FAPE) for children with
disabilities who are eligible to enroll in the Department of Defense
Dependent Schools (DoDDS).
(2) Early intervention services for infants and toddlers birth
through age 2 years who, but for their age, would be eligible to enroll
in the DoDDS under DoD Directive 1342.13.
[[Page 2567]]
(3) A comprehensive and multidisciplinary program for early
intervention services for infants and toddlers with disabilities and
their families.
(b) Establishes a National Advisory Panel (NAP) on Education for
Children with Disabilities, ages 3 to 21, inclusive, and a DoD Inter-
Component Council (ICC) on Early Intervention, in accordance with DoD
Directive 5105.4 \3\.
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\3\ See footnote 1 to Sec. 57.1(a).
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(c) Establishes a DoD Coordinating Committee (DoD-CC) on Early
Intervention, Special Education, and Medically Related Services (MRS).
(d) Authorizes implementing instructions consistent with DoD
5025.1-M \4\, and DoD forms consistent with DoD 83201-M \5\, DoD
8910.1-M \6\, and DoD Instruction 7750.7 \7\.
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\4\ See footnote 1 to Sec. 57.1(a).
\5\ See footnote 1 to Sec. 57.1(a).
\6\ See footnote 1 to Sec. 57.1(a).
\7\ See footnote 1 to Sec. 57.1(a).
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Sec. 57.2 Applicability and scope.
This part:
(a) Applies to the Office of the Secretary of Defense, the Military
Departments, the Chairman of the Joint Chiefs of Staff, the Unified
Combatant Commands, the Inspector General of the Department of Defense,
the Defense Agencies, and the DoD Field Activities (hereafter referred
to collectively as ``the DoD Components'').
(b) Does not apply to schools operated by the Department of defense
in the United States, the District of Columbia, the Commonwealth of
Puerto Rico, the Commonwealth of the Northern Marianna Islands, and the
possessions of the United States (excluding the Trust Territory of the
Pacific Islands and Midway Islands).
(c) Applies to infants, toddlers, and children receiving or
entitled to receive early intervention services or special educational
instruction and related services from the Department of Defense, and
their parents.
Sec. 57.3 Definitions.
Area superintendent. The Superintendent of a DoDDS area, or
designee.
Assessment. Techniques, procedures, and/or instruments used to
measure the individual components of an evaluation.
Assistive technology device. Any item, piece of equipment, or
product system that is used to increase, maintain, or improve
functional capabilities of children with disabilities.
Assistive technology service. Any service that directly assists an
individual with a disability in the selection, acquisition, or use of
an assistive technology device. That term includes the following:
(1) The evaluation of the needs of an individual with a disability,
including a functional evaluation in the individual's customary
environment.
(2) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by individuals with disabilities.
(3) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices.
(4) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing educational and rehabilitative plans and programs.
(5) Training or technical assistance for an individual with
disabilities, or, the family of an individual with disabilities.
(6) Training or technical assistance for professionals (including
individuals providing educational rehabilitative services), employers,
or other individuals who provide services to employ, or are otherwise
substantially involved in the major life functions of an individual
with a disability.
Audiology. A service that includes the following:
(1) Identification of children with auditory impairments.
(2) Determination of the range, nature, and degree of hearing loss,
and communication functions including referral for medical or other
professional attention for the habilitation of hearing.
(3) Provision of habilitative activities, such as language
habilitation, auditory training, speech-reading (lip-reading), hearing
evaluation, and speech conservation.
(4) Creation and administration of programs for the prevention of
hearing loss.
(5) Counseling and guidance of pupils for the prevention of hearing
loss.
(6) Determination of the child's need for group and individual
amplification, selecting and fitting an aid, and evaluating the
effectiveness of amplification.
Autism. A development disability significantly affecting verbal and
nonverbal communication and social interaction generally evident before
age 3 that adversely affects educational performance. That term does
not include a child with characteristics of the disability termed
``serious emotional disturbance.''
Case study committee (CSC). (1) A school-level team comprised of,
among others, the principal, other educators, parents, and MRS
providers who do the following:
(i) Oversee screening and referral of children who may require
special education.
(ii) Oversee the multidisciplinary evaluation of such children.
(iii) Determine the eligibility of the student for special
education and related services.
(iv) Formulate an individualized education curriculum reflected in
an Individualized Education Program (IEP), in accordance with this
part.
(v) Monitor the development, review, and revision of IEPs.
(2) In addition to the required members of the CSC, other
membership will vary depending on the purpose of the meeting. An area
CSC, appointed by the DoDDS Area Superintendent, acts in the absence of
a school CSC. Members of an area CSC may be assigned to augment a
school CSC. The area CSC must have at least two members besides the
parent. One of the DoDDS members must have the authority to commit
DoDDS resources; one shall be qualified to provide, or supervise the
provision of special education. Other members may be selected from the
following groups:
(i) DoDDS regular education personnel.
(ii) DoDDS special education personnel.
(iii) MRS personnel.
Child-find. The ongoing process used by the DoDDS, the Military
Departments, and the other DoD Components to seek and identify children
from birth to age 21, inclusive, who may require early intervention
services or special education and related services. Child-find
activities include the dissemination of information to the public, the
identification and screening of children, and the use of referral
procedures.
Children with disabilities (ages 3 To 21, inclusive). Children,
before graduation from high school or completion of the General
Education Degree, who have one or more impairments, as determined by a
CSC and who need special education and related services.
Consent. That term means the following:
(1) The parent is fully informed of all information about the
activity for which consent is sought in the native language or in
another mode of communication, if necessary.
(2) The parent understands and agrees in writing to the
implementation of the activity for which permission is sought. That
consent describes the activity, lists the child's records (if any) to
be released outside the Department of Defense, and specifies to whom
the records shall be sent. The signed consent acknowledges
[[Page 2568]]
the parent's understanding that the parental consent is voluntary and
may be revoked at any time.
Counseling service. A service provided by a qualified social
worker, psychologist, guidance counselor, or other qualified personnel.
Deaf-blindness. Concomitant hearing and visual impairments. That
disability causes such severe communication, developmental, and
educational problems that it cannot be accommodated in special
education programs solely for children with deafness or blindness.
Deafness. A severe hearing loss or deficit that impairs a child's
ability to process linguistic information through hearing, with or
without amplification, and affects the educational performance
adversely.
Developmental delay. That term means the following:
(1) A significant discrepancy in the actual functioning of an
infant, toddler, or child, birth through age 5, when compared with the
functioning of a nondisabled infant, toddler, or child of the same
chronological age in any of the following areas: physical, cognitive,
communication, social or emotional, and adaptive developmental as
measured using standardized evaluation instruments and confirmed by
clinical observation and judgment.
(2) High probability for developmental delay. An infant or toddler,
birth through age 2, with a diagnosed physical or mental condition,
such as chromosomal disorders and genetic syndromes, that places the
infant or toddler at substantial risk of evidencing a developmental
delay without the benefit of early intervention services.
Early identification. The implementation of a formal plan for
identifying a disability as early as possible in a child's life.
Early intervention services. (1) Developmental services that meet
the following criteria:
(i) Are provided under the supervision of a Military medical
Department.
(ii) Are provided using Military Health Services System resources
at no cost to the parents. Parents may be charged in those instances
where Federal law provides for a system of payments by families
including a schedule of sliding fees, if any, (and incidental fees
identified in Service guidance) that are normally charged to infants,
toddlers, and children without disabilities or to their parents.
(iii) Are designed to meet the developmental needs of an infant or
toddler with a disability in any one or more of the following areas:
(A) Physical.
(B) Cognitive.
(C) Communication.
(D) Social or emotional.
(E) Adaptive development.
(iv) Meet the standards developed or adopted by the Department of
Defense.
(v) Are provided by qualified personnel including early childhood
special educators, speech and language pathologists and audiologists,
occupational therapists, physical therapists, psychologists, social
workers, nurses, nutritionists, family therapists, orientation and
mobility specialists, and pediatricians and other physicians.
(vi) Maximally, are provided in natural environments including the
home and community settings where infants and toddlers without
disabilities participate.
(vii) Are provided in conformity with an Individualized Family
Service Plan (IFSP).
(2) Developmental services include, but are not limited to, the
following services: family training, counseling, and home visits;
special instruction; speech pathology and audiology; occupational
therapy; physical therapy; psychological services; service coordination
services; medical services only for diagnostic or evaluation purposes;
early identification, screening and assessment services; vision
services; and social work services. Also included are assistive
technology devices and assistive technology services; health services
necessary to enable the infant or toddler to benefit from the above
early intervention services; and transportation and related costs
necessary to enable an infant or toddler and the family to receive
early intervention services.
Eligible. The term refers to children who meet the age, command
sponsorship, and dependency requirements established by the DDEA, as
amended, 20 U.S.C. 921 et seq. and DoD Directive 1342.13. When those
conditions are met, children without disabilities, ages 5 to 21, and
children with disabilities, ages 3 to 21, inclusive, are authorized to
receive educational instruction from the DoDDS. Additionally, an
eligible infant or toddler with disabilities is a child from birth
through age 2 years who meets all of the DoDDS eligibility requirements
except for the age requirement. In school year 1994 through 1995,
multidisciplinary assessments, IFSPs, and case management services
shall be required and beginning in school year 1995 through 1996, an
eligible infant or toddler is entitled to receive early intervention
services, in accordance with 20 U.S.C. 1400 et seq.
Evaluation. The synthesis of assessment information by a
multidisciplinary team used to determine whether a particular child has
a disability, the type and extent of the disability, and the child's
eligibility to receive early intervention or special education and/or
related services.
Family training, counseling, and home visits. Services provided by
social workers, psychologists, and other qualified personnel to assist
the family of an infant or toddler eligible for early intervention
services. Those services assist a family in understanding the special
needs of the child and enhancing the child's development.
Free appropriate public education (FAPE). Special education and
related services that do the following:
(1) Are provided at no cost to parents of a child with a
disability, and are under the general supervision and direction of the
DoDDS.
(2) Are provided in the least restrictive environment at a
preschool, elementary, or secondary school.
(3) Are provided in conformity with an IEP.
(4) Meet the requirements of this part.
Functional vocational evaluation. A student-centered appraisal
process for vocational development and career decision making. It
allows students, educators, and others to gather information about such
development and decision making. Functional vocational evaluation
activities for transitional, vocational, and career planning;
instructional goals; objectives; and implementation.
Health services. Services necessary to enable an infant or toddler
to benefit from the other early intervention services being received
under this part. That term includes the following:
(1) Services such as clean intermittent catheterization,
tracheotomy care, tube feeding, changing of dressings or colostomy
collection bags, and other health services.
(2) Consultation by physicians with other service providers about
the special healthcare needs of infants and toddlers with disabilities
that shall need to be addressed in the course of providing other early
intervention services.
(3) That term does not include the following:
(i) Services that are surgical or solely medical.
(ii) Devices necessary to control or treat a medical condition.
(iii) Medical or health services routinely recommended for all
infants or toddlers.
Hearing impairment. An impairment in hearing, whether permanent or
[[Page 2569]]
fluctuating, which adversely affects a child's educational performance,
but is not included under deafness.
Independent evaluation. An evaluation conducted by a qualified
examiner who is not employed by the DoDDS.
Individualized education program (IEP). A written document defining
specially designed instruction for a student with a disability, ages 3
to 21, inclusive. That document is developed and implemented, in
accordance with this part.
Individualized family service plan (IFSP). A written document for
an infant or toddler, age birth through 2, with a disability and the
family of such infant or toddler that is based on a multidisciplinary
assessment of the unique needs of the child and concerns and priorities
of the family, and identifies the early intervention and other services
appropriate to meet such needs, concerns, and priorities.
Infants and toddlers with disabilities. Children, ages birth
through 2, who need early intervention services because they:
(1) Are experiencing a developmental delay; or,
(2) Have a diagnosed physical or mental condition that has high
probability of resulting in a developmental delay.
Inter-component. Cooperation among DoD organizations and programs,
ensuring coordination and integration of services to infants, toddlers,
children with disabilities and to their families.
Medical services. Those evaluative, diagnostic, therapeutic, and
supervisory services provided by a licensed and /or credentialed
physician to assist CSCs and to implement IEPs. Medical services
include diagnosis, evaluation, and medical supervision of related
services that, by statute, regulation, or professional tradition, are
the responsibility of a licensed and credentialed physician.
Medically related services. (1) Medical services (as defined in
definition ``Medical services'') are those services provided under
professional medical supervision, which are required by a CSC to
determine a student's eligibility for special education and, if the
student is eligible, the special education and related services
required by the student under this part.
(2) Direct or indirect services under the development or
implementation of an IEP necessary for the student to benefit from the
educational curriculum. Those services may include medical services for
diagnostic or evaluative purpose, social work, community health
nursing, dietary, occupational therapy, physical therapy, audiology,
ophthalmology, and psychological testing and therapy.
Meetings. All parties attending a meeting to determine eligibility
or placement of a child shall appear personally at the meeting site on
issuance of written notice and establishment of a date convenient to
the concerned parties. When a necessary participant is unable to
attend, electronic communication suitable to the occasion may be used
to involve the unavailable party. Parents generally shall be
responsible for the cost of travel to personally attend meetings about
the eligibility or placement of their child.
Mental retardation. Significantly subaverage general intellectual
functioning, existing concurrently with deficits in adaptive behavior.
That disability is manifested during the developmental period and
adversely affects a child's educational performance.
Multidisciplinary. The involvement of two or more disciplines or
professions in the integration and coordination of services, including
evaluation and assessment activities, and development of an IFSP or an
IEP.
Native language. When used with reference to an individual of
limited English proficiency, the home language normally used by such
individuals, or in the case of a child, the language normally used by
the parent of the child.
Natural environments. Settings that are natural or normal (e.g.,
home or day care setting) for the infant, toddler, or child's same-age
peers who have no disability.
Non-DoDDS placement. An assignment by the DoDDS of a child with a
disability to a non-DoDDS school or facility.
Non-DoDDS school or facility. A public or private school or other
institution not operated by the DoDDS.
Nutrition services. Those services to infants and toddlers include
the following:
(1) Conducting individual assessments in nutritional history and
dietary intake; anthropometric, biochemical, and clinical variables;
feeding skills and feeding problems; and food habits and food
preferences.
(2) Developing and monitoring plans to address the nutritional
needs of infants and toddlers eligible for early intervention services.
(3) Making referrals to community resources to carry out nutrition
goals.
Occupational therapy. That term includes services to address the
functional needs of children (birth to age 21, inclusive) related to
adaptive development; adaptive behavior and play; and sensory, motor,
and postural development. Those services are designed to improve the
child's functional ability to perform tasks in home, school, and
community settings, and include the following:
(1) Identification, assessment, and intervention.
(2) Adaption of the environment and selection, design, and
fabrication of assistive and orthotic devices to help development and
promote the acquisition of functional skills.
(3) Prevention or minimization of the impact of initial or future
impairment, delay in development, or loss of functional ability.
Orthopedic impairment. A severe physical impairment that adversely
affects a child's educational performance. That term includes
congenital impairments such as club foot or absence of some member;
impairments caused by disease, such as poliomyelitis and bone
tuberculosis, and impairments from other causes such as cerebra palsy,
amputations, and fractures or burns causing contractures.
Other health impairment. Limited strength, vitality, or alterness
due to chronic or acute health problems that adversely affect a child's
educational performance. Such impairments include heart condition,
tuberculosis, rheumatic fever, nephritis, asthma, sickle cell anemia,
hemophilia, seizure disorder, lead poisoning, leukemia, diabetes, or
attention deficit disorder.
Parent. The biological father or mother of a child; a person who,
by order of a court of competent jurisdiction, has been declared the
father or mother of a child by adoption; the legal guardian of a child;
or a person in whose household a child resides, if such person stands
in loco parentis to that child and contributes at least one-half of the
child's support.
Parent counseling and training. A service to assist parents in
understanding the special needs of their child's development and by
providing them with information on child development and special
education.
Personally identifiable information. Information that would make it
possible to identify the infant, toddler, or child with reasonable
certainty. Examples include name, parent's name, address, social
security number, or a list of personal characteristics.
Physical therapy. That term includes services to children (birth to
age 21, inclusive) to address the promotion of sensorimotor function
through enhancement of musculoskeletal status, neurobehavioral
organization, perceptual and motor development,
[[Page 2570]]
cardiopulmonary status, and effective environmental adaption. Those
services include the following:
(1) Screening, evaluation, and assessment to identify movement
dysfunction.
(2) Obtaining, interpreting, and integrating information to
appropriate program planning to prevent, alleviate, or compensate for
movement dysfunction and related functional problems.
(3) Providing individual and group services or treatment to
prevent, alleviate, or compensate for movement dysfunction and related
functional problems.
Primary referral source. Parents and the DoD Components, including
child development centers, pediatric clinics, and newborn nurseries,
that suspect an infant or toddler has a disability and brings the child
to the attention of the EIP.
Psychological services. A service that includes the following:
(1) Administering psychological and educational tests and other
assessment procedures.
(2) Interpreting test and assessment results.
(3) Obtaining, integrating, and interpreting information about a
child's behavior and conditions to learning.
(4) Consulting with other staff members, including service
providers, to plan programs to meet the special needs of children, as
indicated by psychological tests, interviews, and behavioral
evaluations.
(5) Planning and managing a program of psychological services,
including psychological counseling for children and parents, family
counseling, consultation on child development, parent training, and
education programs.
Public awareness program. Activities or print materials focusing on
early identification of infants and toddlers with disabilities.
Materials may include information prepared and disseminated by a
military medical department to all primary referral sources and
information for parents on the availability of early intervention
services. Procedures to determine the availability of information on
early intervention services to parents are also included in that
program.
Qualified. A person who meets the DoD-approved or recognized
certification, licensing, or registration requirements or other
comparable requirements in the area in which the person provides
special education or related services or early intervention services to
an infant, toddler, or child with a disability.
Recreation. A related service that includes the following.
(1) Assessment of leisure activities.
(2) Therapeutic recreational activities.
(3) Recreational programs in schools and community agencies.
(4) Leisure education.
Rehabilitation counseling. Services provided by a rehabilitation
counselor or other qualified personnel in individual or group sessions
that focus specifically on career development, employment preparation,
achieving independence, and integration in the workplace and community
of the student with a disability.
Related services. Transportation and such developmental,
corrective, and other supportive services as required to assist a
child, age 3 to 21, inclusive, with a disability to benefit from
special education under the child's IEP. The term includes speech
therapy and audiology, psychological services, physical and
occupational therapy, recreation, early identification and assessment
of disabilities in children, counseling services, and medical services
for diagnostic or evaluative purposes. That term also includes
rehabilitation counseling services, school health services, social work
services in schools, and parent counseling. The sources for those
services are school, community, and medical treatment facilities
(MTFs).
School health services. Services provided by a qualified school
nurse or other qualified person.
Separate facility. A school or a portion of a school, regardless of
whether it is operated by the DoDDS, attended exclusively by children
with disabilities.
Serious emotional disturbance. A condition confirmed by clinical
evaluation and diagnosis and that, over a long period of time and to a
marked degree, adversely affect educational performance, and exhibits
one or more of the following characteristics:
(1) Inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(2) Inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
(3) Inappropriate types of behavior under normal circumstances.
(4) A tendency to develop physical symptoms or fears associated
with personal or school problems.
(5) A general pervasive mood of unhappiness or depression. Includes
children who are schizophrenic, but does not include children who are
socially maladjusted unless it is determined they are seriously
emotionally disturbed.
Service coordination. Activities of a service coordinator to assist
and enable an infant or toddler and the family to receive the rights,
procedural safeguards, and services that are authorized to be provided
under the DoD EIP. Those activities include the following:
(1) Coordinating the performance of evaluation and assessments.
(2) Assisting families to identify their resources, concerns, and
priorities.
(3) Facilitating and participating in the development, review, and
evaluation of IFSPs.
(4) Assisting in identifying available service providers.
(5) Coordinating and monitoring the delivery of available services.
(6) Informing the family of support or advocacy services.
(7) Coordinating with medical and health providers.
(8) Facilitating the development of a transition plan to preschool
services.
Service provider. Any individual who provides services listed in an
IEP or an IFSP.
Social work services in schools. A service that includes the
following:
(1) Preparing a social or developmental history on a child with a
disability.
(2) Counseling a child and the family on a group or individual
basis.
(3) Working with those problems in a child's home, school, or
community that adversely affect adjustment in school.
(4) Using school and community resources to enable a child to
receive maximum benefit from the educational program.
Special education. Instruction and related services for which a
child, age 3 to 21, inclusive, becomes entitled when a CSC determines a
child's educational performance is adversely affected by one or more
disabling conditions.
(1) Special education is specially designed instruction, including
physical education, which is provided at no cost to the parent or
guardians to meet the unique needs of a child with a disability,
including instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings.
(2) That term includes speech therapy or any other related service
if the service consists of specially designed instruction, at no cost
to the parents, to meet the unique needs of a child with a disability.
(3) That term also includes vocational education if it consists of
specially designed instruction, at no cost to the parents, to meet the
unique needs of a child with a disability.
(4) At no cost. For a child eligible to attend the DoDDS without
paying
[[Page 2571]]
tuition, specially designed instruction and related services are
provided without charge. Incidental fees normally charged to
nondisabled students or their parents as a part of the regular
educational program may be imposed.
(5) Physical education. The development of the following:
(i) Physical and motor fitness.
(ii) Fundamental motor skills and patterns.
(iii) Skills in aquatics, dance, and individual and group games and
sports, including intramural and lifetime sports.
(iv) A program that includes special physical education, adapted
physical education, movement education, and motor development.
(6) Vocational education. Organized educational programs for the
preparation of individuals for paid or unpaid employment or for
additional preparation for a career requiring other than a
baccalaureate or advanced degree.
Special instruction. That term includes the following:
(1) The design of learning environments and activities to promote
acquisition of skills in a variety of developmental areas, including
cognitive processes and social interaction.
(2) Curriculum planning, including the planned interaction of
personnel, materials, time, and space, that leads to achieving the
outcomes in an IEP or an IFSP.
(3) Providing families with information, skills, and support to
enhance skill development.
(4) Working with a child to enhance development and cognitive
processes.
Specific learning impairment. A disorder in one or more of the
basic psychological processes involved in understanding or in using
spoken or written language that may manifest itself as an imperfect
ability to listen, think, speak, read, write, spell, remember, or do
mathematical calculations. That term includes such conditions as
perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia. The term, commonly called,
``specific learning disability,'' does not include learning problems
that are primarily the result of visual, hearing, or motor
disabilities; mental retardation; emotional disturbance; or
environmental, cultural, or economic differences.
Speech and language impairments. A communication disorder, such as
stuttering, impaired articulation, voice impairment, or a disorder in
the receptive or expressive areas of language that adversely affects a
child's educational performance.
Speech therapy. That related service includes the following:
(1) Identification of children with communicative or oropharyngeal
disorders and delays in development of communication skills.
(2) Diagnosis and appraisal of specific speech or language
impairments.
(3) Referral for medical or other professional attention to correct
or habilitate speech or language impairments.
(4) Provision of speech and language services for the correction,
habilitation, and prevention of communicative impairments.
(5) Counseling and guidance of children, parents, and teachers for
speech and language impairments.
Transition services. That term means the following:
(1) A coordinated set of activities for a student that may be
required to promote movement from early intervention, preschool, and
other educational programs into different educational settings or
programs.
(2) For students 14 years of age and older, transition services are
designed in an outcome-oriented process which promotes movement from
school to postschool activities; including, post-secondary education,
vocational training, integrated employment; and including supported
employment, continuing and adult education, adult services, independent
living, or community participation. The coordinated set of activities
shall be based on the individual student's needs, considering the
student's preferences and interests, and shall include instruction,
community experiences, the development of employment and other
postschool adult living objectives, and acquisition of daily living
skills and functional vocational evaluation.
Transportation. A service that includes the following:
(1) Services rendered under the IEP of a child with a disability:
(i) Travel to and from school and between schools, including travel
necessary to permit participation in educational and recreational
activities and related services.
(ii) Travel in and around school buildings.
(iii) Specialized equipment, including special or adapted buses,
lifts, and ramps, if required to provide transportation for a child
with a disability.
(2) Transportation and related costs for early intervention
services include the cost of travel (e.g., mileage or travel by taxi,
common carrier, or other means) and other costs (e.g., tolls and
parking expenses) that are necessary to enable an eligible child and
the family to receive early intervention services.
Traumatic brain injury. An acquired injury to the brain caused by
an external physical force resulting in total or partial functional
disability or psychosocial impairment that adversely affects
educational performance. That term includes open or closed head
injuries resulting in mild, moderate, or severe impairments in one or
more areas including cognition, language, memory, attention, reasoning,
abstract thinking, judgment, problem solving, sensory, perceptual and
motor abilities, psychosocial behavior, physical function, information
processing, and speech. That term does not include brain injuries that
are congenital or degenerative, or brain injuries that are induced by
birth trauma.
Vision services. Services necessary to habilitate or rehabilitate
the effects of sensory impairment resulting from a loss of vision.
Visual impairment. An impairment of vision that, even with
correction, adversely affects a child's educational performance. That
term includes both partially seeing and blind children.
Sec. 57.4 Policy.
It is DoD policy that:
(a) Eligible infants and toddlers with disabilities and their
families shall be entitled to receive early intervention services
consistent with Appendix A to this part.
(b) Eligible children with disabilities, ages 3 to 21, inclusive,
shall be provided a FAPE in the least restrictive environment,
consistent with Appendix B to this part.
(c) Parents of eligible infants, toddlers, and children with
disabilities from birth to age 21, inclusive, shall be full
participants in early intervention and special education services.
Sec. 57. 5 Responsibilities.
(a) The Under Secretary of Defense for Personnel and Readiness
shall:
(1) Establish a NAP consistent with Appendix C to this part.
(2) Establish and chair, or designate a ``Chair,'' of the DoD-CC on
Early Intervention, Special Education, and MRS consistent with Appendix
D to this part.
(3) Establish and chair, or designate a ``Chair,'' of the DoD
Inter-Component Coordinating Council (ICC) on Early Intervention
consistent with Appendix E to this part.
(4) Ensure compliance with this part in the provision of early
intervention services, special education, and related
[[Page 2572]]
services through the DoD-CC, in accordance with DoD Instruction 1342.14
\8\ and other appropriate guidances.
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\8\ See footnote 1 to Sec. 57.1(a).
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(5) In consultation with the General Counsel of the Department of
Defense (GC, DoD) and the Secretaries of the Military Departments, do
the following:
(i) Ensure that eligible infants and toddlers with disabilities and
their families are provided early intervention services under 20 U.S.C.
921 et seq. and 1400 et seq.
(ii) Ensure the coordination of early intervention, special
education, and related services.
(iii) Ensure the development of a DoD-wide comprehensive child-find
system to identify eligible infants, toddlers, and children ages birth
to age 21, inclusive, under 20 U.S.C 921 et seq. and 1400 et seq. who
may require early intervention or special education services.
(iv) Ensure that DoD personnel are trained to provide the mediation
services specified in Appendix F to this part.
(v) Ensure that transition services are available to promote
movement from early intervention, preschool, and other educational
programs into different educational settings and postsecondary
environments.
(vi) Ensure that DoD personnel who provide services (e.g., child
care, medical care, and recreation) to infants and toddlers and their
families are participants in a comprehensive inter-Component system for
early intervention services.
(vii) Assign functions and geographic regions of responsibility to
the Military Departments for providing MRS and early intervention
services.
(viii) Ensure that the Military Departments deliver the following:
(A) A comprehensive, coordinated and multidisciplinary program
of early intervention services for eligible infants and toddlers
with disabilities.
(B) MRS for eligible children with disabilities, ages 3 to 21,
inclusive.
(ix) Ensure that qualified personnel participate in providing
transition services for eligible infants, toddlers, and children
with disabilities from birth to age 21, inclusive.
(x) Ensure the development and implementation of a comprehensive
system of personnel development for the DoDDS and the Military
Departments. That system shall include professionals,
paraprofessionals, and primary referral source personnel in the
areas of early intervention, special education, and MRS. That system
may include the following:
(A) Implementing innovative strategies and activities for the
recruitment and retention of providers of early intervention
services, special education, and MRS.
(B) Ensuring that personnel requirements are established
consistent with recognized certification, licensing, registration,
or other comparable requirements for personnel providing early
intervention services, special education, or MRS.
(C) Ensuring that training is provided in and across
disciplines.
(D) Training providers of early intervention services, special
education, and MRS to work overseas.
(xi) Develop procedures to compile data on the numbers of
eligible infants and toddlers with disabilities and their families
in need of early intervention services, in accordance with DoD
Directives 5400.7 and 5400.11.\9\ Those data elements shall include
the following:
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\9\ See footnote 1 to Sec. 57.1(a).
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(A) The number of infants and toddlers and their families
served.
(B) The types of services provided.
(C) Other information required to evaluate the implementation of
early intervention programs (EIPs).
(xii) Resolve disputes in the DoD Components arising under
Appendix A to this part.
(b) The Secretaries of the Military Departments shall:
(1) Provide MRS for eligible children with disabilities, ages 3
to 21, inclusive.
(2) Plan, develop, and implement a comprehensive, coordinated,
intra-Component, and community-based system of early intervention
services for eligible infants and toddlers with disabilities and
their families.
(3) Design and implement activities to ensure compliance through
technical assistance and program evaluation for early intervention
and MRS.
(c) The Director, Department of Defense Education Activity,
shall ensure that the Director, DoDDS, does the following:
(1) Ensures that eligible children with disabilities, ages 3 to
21, inclusive, are provided a FAPE.
(2) Ensures that the educational needs of children with and
without disabilities are met comparably, consistent with Appendix B
to this part.
(3) Ensures that educational facilities and services operated by
the DoDDS for children with and without disabilities are comparable.
(4) Maintains records on special education and related services
provided to eligible children with disabilities, ages 3 to 21,
inclusive, consistent with DoD Directive 5400.11.
(5) Provides any or all special education and related services
required by a child with a disability, ages 3 to 21, inclusive,
other than those furnished by the Secretaries of the Military
Departments. The Director, DoDDS, may act through inter-Agency,
intra-Agency, and inter-Service arrangements, or through contracts
with private parties when funds are authorized and appropriated.
(6) Participates in the development and implementation of a
comprehensive system of personnel development.
(7) Undertakes activities to ensure compliance by the DoDDS with
this part through monitoring, technical assistance, and program
evaluation of special education and those related services provided
by the DoDDS.
(d) The Director, Defense Office of Hearings and Appeals, under
the General Counsel of the Department of Defense, shall ensure
impartial due process hearings are provided consistent with Appendix
F to this part.
Sec. 57.6 Procedures.
(a) The procedures for early intervention services for infants and
toddlers with disabilities and their families are prescribed in
Appendix A to this part.
(b) The procedures for educational programs and services for
children with disabilities, ages 3 to 21, inclusive, are prescribed in
Appendix B to this part.
(c) The procedures for conducting hearings are prescribed in
Appendix F to this part.
Appendix A to Part 57--Procedures for the Provision of Early
Intervention Services for Infants and Toddlers With Disabilities and
Their Families
A. Requirements for an Early Intervention Program (EIP)
1. All eligible infants and toddlers with disabilities from
birth through age 2 and their families shall receive early
intervention services, as follows:
a. In school years 1991 through 1994, the Department of Defense
planned and continues to develop a comprehensive, coordinated,
multidisciplinary program of early intervention services for infants
and toddlers with disabilities among DoD entities involved in
providing such services.
b. In school year 1994 through 1995, the Department of Defense
implemented and shall continue to implement the following program
components described in paragraph A.1.a. of this Appendix:
(1) Multidisciplinary assessments.
(2) IFSPs.
(3) Service coordination.
c. In school year 1995 through 1996, the Department of Defense
shall implement the program described in paragraph A.1.a. of this
Appendix. \1\
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\1\ The EIP shall be continuously implemented.
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2. Early intervention services shall be provided in the natural
environment.
3. Parents of infants and toddlers with disabilities are to be
full and meaningful participants in the EIP.
B. Military Department Responsibilities
Each Military Department shall develop and implement in its
assigned geographic area a system to provide for the following:
1. A comprehensive child find procedure coordinated with the
DoDDS child find system and primary referral sources such as the
child development center and the pediatric clinic.
2. Administration and supervision of EIPs and services.
3. Identification of available resources and coordination with
those resource providers,
[[Page 2573]]
including the DoD Components, who routinely provide services to
infants and toddlers without disabilities and their families.
4. Procedures to provide timely services for infants and
toddlers with disabilities and their families.
5. Procedures to resolve inter-Component disputes about the
delivery of early intervention services.
6. Procedures to collect and report data reflecting the number
of infants and toddlers and their families served, the types of
services provided, and other information required by the USD(P&R)
implementation of early intervention services.
7. Multidisciplinary, comprehensive, and functional assessment
of the unique strengths and needs of infants or toddlers and the
identification of services to meet those needs.
8. Procedures for a family-directed assessment to determine
resources, priorities, and concerns of a family and to identify
services necessary to enhance a family's capacity to meet the
child's needs.
9. An IFSP that details the early intervention services and the
coordination of those services.
10. A public awareness program focusing on early identification
of infants and toddlers with disabilities.
11. A central directory that includes a description of the early
intervention services and other relevant resources available in each
military community overseas.
12. Information to parents about their EIP procedural
safeguards.
13. Establishment of ICCs at appropriate levels. Memberships
shall include parents and the DoD Components who are involved in the
delivery of early intervention services.
14. Policies and procedures for the establishment and
maintenance of standards to ensure that personnel necessary to carry
out the EIP are prepared and trained.
C. Eligibility
Infants and toddlers with disabilities from birth through age 2
are eligible for early intervention services because they meet one
of the following criteria:
1. The child is experiencing a developmental delay as measured
by diagnostic instruments and procedures of 2 standard deviations
below the mean in at least one area, or by a 25 percent delay in at
least one area on assessment instruments that yield scores in
months, or a developmental delay of 1.5 standard deviations below
the mean in two or more areas, or by a 20 percent delay on
assessment instruments that yield scores in months in two or more of
the following areas of development: Cognitive, physical,
communication, social or emotional, or adaptive.
2. The child has a diagnosed physical or mental condition which
has a high probability of resulting in developmental delay; e.g.,
chromosomal disorders or genetic syndromes.
D. IFSP
1. Each military medical department shall develop and implement
procedures to ensure that an IFSP is developed by a
multidisciplinary team including the parents of each infant or
toddler with a disability who meets the eligibility criteria in
section C.1. of this appendix.
2. Meetings to develop and review the IFSP must include the
following participants:
a. The parent or parents of the child.
b. Other family members, as requested by the parent, if
possible.
c. An advocate outside of the family, if the parent requests
that person's participation.
d. The EIP services coordinator who has worked with the family
since the initial referral of the child or who has been designated
as ``responsible for the implementation of the IFSP.''
e. The person(s) directly involved in conducting the evaluations
and assessments.
f. As appropriate, persons who shall provide services to the
child or family.
3. If a person listed in section D.2. of this appendix is unable
to attend a meeting, arrangements must be made for the person's
involvement through other means, including the following:
a. Participating in a telephone conference call.
b. Having a knowledgeable representative attend the meeting.
c. Making pertinent records available at the meeting.
4. The IFSP shall be written in a reasonable time after
assessment and shall contain the following:
a. A statement of the child's current developmental levels
including physical, cognitive, communication, social or emotional,
and adaptive behaviors based on acceptable objective criteria.
b. A statement of the family's resources, priorities, and
concerns on enhancing the child's development.
c. A statement of the major outcomes expected to be achieved for
the child and the family. Additionally, the statement shall contain
the criteria, procedures, and timeliness used to determine the
degree to which progress toward achieving the outcomes is being made
and whether modification or revision of the outcomes and services
are necessary.
d. A statement of the specific early intervention services
necessary to meet the unique needs of the child and the family
including the frequency, intensity, and method of delivering
services.
e. A statement of the natural environments in which early
intervention services shall be provided.
f. The projected dates for initiation of services and the
anticipated duration of those services.
g. The name of the EIP service coordinator.
h. The steps to be taken supporting the transition of the
toddler with a disability to preschool or other services.
5. The IFSP shall be evaluated at least once a year and the
family shall be provided an opportunity to review the plan at 6-
month intervals (or more frequently, based on the child and family
needs).
6. The contents of the IFSP shall be explained to the parents
and an informed, written consent from the parents shall be obtained
before providing early intervention services described in that plan.
7. With the parent's consent, early intervention services may
begin before the completion of the evaluation and assessment when it
has been determined by a multidisciplinary team that a service is
needed immediately by the child and/or the child's family. Although
all assessments have not been completed, an IFSP must be developed
before the start of services. The remaining assessments must then be
completed in a timely manner.
8. If a parent does not provide consent for participation in all
early intervention services, the services shall still be provided
for those interventions to which a parent does give consent.
E. Procedural Safeguards in the EIP
1. Parents of infants and toddlers with disabilities are
afforded the following procedural safeguards to ensure that their
children receive appropriate early intervention services:
a. The timely administrative resolution of parental complaints,
including hearing procedures in appendix F to this part.
b. The right to confidentiality of personally identifiable
information under DoD Directive 5400.11.\2\
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\2\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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c. The right to written notice and consent to the release of
relevant information outside the Department of Defense.
d. The right to determine whether they, their child, or other
family members shall accept or decline any early intervention
services without jeopardizing other early intervention services.
e. The opportunity to examine records on assessment, screening,
eligibility determinations, and the development and implementation
of the IFSP.
f. The right to prior written notice when the EIP
multidisciplinary team proposes, or refuses, to initiate or change
the identification, evaluation, placement, or provision of early
intervention services to the infant or toddler with a disability.
g. The right to prior written notice in their native language,
unless it clearly is not possible to do so, which informs them of
all procedural safeguards.
h. During the pendency of any proceeding or action involving a
complaint, unless the EIP and the parents otherwise agree, the child
shall continue to receive the appropriate early intervention
services currently being provided, or, if applying for initial
services, shall receive the services not in dispute.
2. Parents shall be advised of their rights to due process, as
defined in appendix F to this part.
Appendix B to Part 57--Procedures for Educational Programs and Services
for Children With Disabilities, Ages 3 to 21, Inclusive
A. Identification and Screening
It is the responsibility of school officials of the DoDDS to
locate, identify, and with the consent of a child's parent, evaluate
all children who are eligible to enroll in the
[[Page 2574]]
DoDDS under DoD Directive 1342.13 \1\ who may require special
education and related services.
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
---------------------------------------------------------------------------
1. Procedures for Identification and Screening. The DoDDS
officials shall conduct the following activities to determine if a
child needs special education and related services:
a. Screen educational records.
b. Screen students using system-wide or other basic skill tests
in the areas of reading, math, and language arts.
c. Screen school health data such as reports of hearing, vision,
speech, or language tests and reports from healthcare personnel
about the health status of a child.
d. Analyze school records to obtain pertinent information about
the basis for suspensions, exclusions, withdrawals, and disciplinary
actions.
e. In cooperation with the Military Departments, conduct on-
going child-finding activities and publish, periodically, any
information, guidelines, and direction on child-find activities for
eligible children with disabilities, ages 3 to 21, inclusive.
f. Coordinate the transition of children from early intervention
to preschool with the Military Services.
2. Referral of a Child for Special Education or Related
Services. The DoDDS officials, MRS providers, or others who suspect
that a child has a possible disabling condition shall refer that
child to the CSC.
B. Assessment and Evaluation
Any eligible child who is referred to a CSC shall receive a full
and comprehensive diagnostic evaluation of educational needs. An
evaluation shall be conducted before an IEP is developed or
placement is made in a special education program.
1. Procedures for Assessment and Evaluation. A CSC shall ensure
that the following elements are included in a comprehensive
assessment and evaluation of a child:
a. Assessment of visual and auditory acuity.
b. A plan to assess the type and extent of the disability. A
child shall be assessed in all areas related to the suspected
disability. When necessary, the assessment plan shall include the
following:
(1) Assessment of the level of functioning academically,
intellectually, emotionally, socially, and in the family.
(2) Observation in an educational environment.
(3) Assessment of physical status including perceptual and motor
abilities.
(4) Assessment of the need for transition services for students
14 years and older, the acquisition of daily living skills, and
functional vocational assessment.
c. The involvement of parents, under this part.
d. The use of all locally available community, medical, and
school resources to accomplish the assessment. At least one
specialist with knowledge in the area of the suspected disability
shall be a member of the multidisciplinary assessment team.
e. The requirement that each assessor prepare an individual
assessment report that describes the instruments and techniques
used, the results of the testing, and the relationship of those
findings to educational functioning.
f. The inclusion of a description of the problem area
constituting the basis for an MRS referral.
2. Standards for Assessment Selection and Procedures. All DoD
elements, including the CSC and MRS providers, shall ensure that
assessment materials and evaluation procedures comply, as follows:
a. Selected and administered so as not to be racially or
culturally discriminatory.
b. Administered in the native language or mode of communication
of the child unless it clearly is not possible to do so.
c. Validated for the specific purpose for which they are used or
intended to be used.
d. Administered by trained personnel in compliance with the
instructions of the testing instrument.
e. Administered such that no single procedure is the sole
criterion for determining an appropriate educational program for a
child with a disability.
f. Selected to assess specific areas of educational needs and
strengths and not merely to provide a single general intelligence
quotient.
g. Administered to a child with impaired sensor, motor, or
communication skills so that the results reflect a child's actual
ability or level of achievement, and simply not the impaired skill
itself.
3. Determination of Eligibility for Special Education and
Related Services. The CSC shall be convened to determine the
eligibility of a child for special education and related services.
The CSC shall do the following:
a. Ensure that the full comprehensive evaluation of a child is
accomplished by a multidisciplinary team. The team shall be
comprised of teachers or other specialists with knowledge in the
area of the suspected disability.
b. Meet as soon as possible after a child has been assessed to
determine the eligibility of the child for services.
c. Afford the child's parents the opportunity to participate in
the CSC eligibility meeting.
d. Issue a written eligibility report that contains the
following:
(1) A description of the nature of the child's disabling
condition.
(2) A synthesis of the formal and informal findings of the
multidisciplinary assessment team of the child's academic progress.
(3) A summary of information from the parents, the child, or
other persons having significant previous contact with the child.
(4) A determination of eligibility statement.
(5) A list of the educational areas affected by a child's
disability and a description of a child's educational needs.
4. Reevaluation for Eligibility for Special Education and
Related Services. School officials shall provide a comprehensive
reevaluation of a child with a disability every 3 years, or more
frequently, if conditions warrant. The scope and type of the
comprehensive reevaluation shall be determined individually based on
a child's performance, behavior, and needs during the reevaluation.
C. Individualized Education Program (IEP)
The DoDDS officials shall ensure that the CSC develops and
implements an IEP for each child with a disability who is enrolled
in the DoDDS or is placed in another institution by the DoDDS.
1. The CSC Meeting for the Development and Implementation of an
IEP. The CSC shall establish and convene a meeting to develop,
review, or revise the IEP of a child with a disability. That meeting
shall be scheduled as soon as possible following a determination by
the school or area CSC that the child is eligible for special
education and related services. The meeting participants shall,
minimally, include the following:
a. A principal or school representative other than the child's
teacher who is qualified to provide or supervise the provision of
special education.
b. The child's teacher.
c. A special education teacher.
d. One or both of the child's parents.
e. The child, if appropriate.
f. For a child with a disability who has been evaluated for the
first time, a representative of the evaluation team who is
knowledgeable about the evaluation procedures used and is familiar
with the results of the evaluation.
g. Other individuals invited at the discretion of the parent or
school.
2. Requirements for the Development of the IEP. The CSC shall
prepare the IEP with the following:
a. A statement of the child's present levels of educational
performance.
b. A statement of annual goals including short-term
instructional objectives.
c. Objective criteria for determining, at least annually,
whether the educational objectives are being achieved.
d. A statement of the physical education program provided in one
of the following settings:
(1) In the regular education program.
(2) In the regular education program with adaptations,
modifications, or the use of assistive technology.
(3) Through specially designed instruction based on the goals
and objectives included in the IEP.
e. A statement of the transition services beginning at age 14
and annually, thereafter. When appropriate, include a statement of
the inter-Agency responsibilities or linkages (or both) before the
student leaves the school setting. If a specially designed
instructional program is required, include the goals and objectives
in the IEP.
f. A statement of special transportation requirement.
g. A statement of the amount of time a week that each special
education and related service shall be provided to the child.
h. The extent to which the child shall participate in regular
educational programs, including the following:
(1) The projected date for the initiation and the anticipated
length of IEP activities and services.
(2) Any statements requiring an adjusted school day or an
extended school year program.
[[Page 2575]]
i. A statement of the vocational education program for secondary
students. If a specially designed instructional program is required,
the necessary goals and objectives in the IEP shall be included.
3. Requirements for the Implementation of the IEP. The DoDDS CSC
shall:
a. Obtain parental agreement and signature before implementation
of the IEP.
b. Provide a copy of the child's IEP to the parents.
c. Ensure that the IEP is in effect before a child receives
special education and related services.
d. Review and revise the IEP for each child at least annually in
a CSC meeting.
e. Accept a child's current IEP when he or she transfers to the
DoDDS if the CSC of the gaining school or the area CSC does the
following:
(1) Notifies and obtains consent of the parents to use the
current IEP and all elements contained in it.
(2) Involves the local DoD Component responsible for the
delivery of the MRS of the medical requirements in the IEP.
(3) Initiates a CSC meeting to revise the current IEP.
(4) If necessary, initiates an evaluation of the child.
f. Afford the child's parents the opportunity to participate in
every CSC meeting to determine their child's initial or continuing
eligibility for special education and related services, or to
prepare or change the child's IEP or to determine or change the
child's placement.
g. Ensure that at least one parent understands the special
education procedures including the due process procedures described
in appendix F of this part and the importance of the parent's
participation in those processes. School officials shall use devices
or hire interpreters or other intermediaries who might be necessary
to foster effective communications between the school and the parent
about the child.
h. Provide special education and related services, in accordance
with the IEP. The Department of Defense and its constituent elements
and personnel are not accountable if a child does not achieve the
growth projected in the IEP.
i. Ensure that all provisions developed for any child entitled
to an education by the DoDDS are fully implemented in schools or in
non-DoDDS schools or facilities including those requiring special
facilities, other adaptations, or assistive devices.
D. Placement Procedures and Least Restrictive Environment
1. A child shall not be placed by the DoDDS in any special
education program unless the CSC has developed an IEP. If a child
with a disability is applying for initial admission to a school, the
child shall enter on the same basis as a child without a disability.
A child with a disability and with the consent of a parent and
school officials may receive an initial placement in a special
education program under procedures listed in paragraph C.3.e. of
this appendix.
2. A placement decision requires the following:
a. A parent consent to the placement before actual placement of
the child, except as otherwise provided in section F.2. of this
appendix.
b. Delivery of educational instruction and related services in
the least restrictive environment. To the maximum extent, a child
with a disability should be placed with children who are not
disabled. Special classes, separate schooling, or other removal of a
child with a disability from the regular education environment shall
occur only when the type or severity of the disability is such that
education in regular classes with the use of supplementary aids and
services cannot be achieved satisfactorily.
c. The CSC to base placements on the IEP and to review the IEP
at least annually.
d. A child shall participate, to the maximum extent, in school
activities including meals, assemblies, recess periods, and field
trips with children who are not disabled.
e. Consideration of factors affecting the child's well-being
including the effects of separation from parents.
f. A child shall attend a DoDDS school that is located as close
as possible to the residence of the parent who is sponsoring the
child's attendance. Unless otherwise required by the IEP, the school
should be the same school that the child would have attended had he
or she not been disabled.
E. Children With Disabilities Who Are Placed in a Non-DOD School or
Facility
Children with disabilities who are eligible to receive a DoDDS
education, but are placed in a non-DoDDS school or facility by the
DoDDS, shall have all the rights of children with disabilities who
are enrolled in a DoDDS school. A child with a disability may be
placed in a non-DoDDS school or facility only if required by the
IEP.
1. Requirements for a Non-DoDDS School or Facility Placement
a. Placement in a non-DoDDS school or facility shall be made
under the host-nation requirements.
b. Placement in a non-DoDDS school or facility is subject to all
treaties, Executive agreements, and status of forces agreements
between the United States and the host nations, and all DoD and
DoDDS regulations.
c. If the DoDDS places a child with a disability in a non-DoDDS
school or facility as a means of providing special education and
related services, the program of that institution including
nonmedical care and room and board, as in the child's IEP, must be
provided at no cost to the child or the child's parents. The DoDDS
or the responsible DoD Component shall pay the costs in accordance
with DoD 1010.13-R \2\.
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\2\ See footnote 1 to section A. of this appendix.
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d. Local school officials shall initiate and conduct a meeting
to develop an IEP for the child before placement. A representative
of the non-DoDDS school or facility should attend the meeting. If
the representative cannot attend, the DoDDS officials shall
communicate in other ways to ensure participation including
individual or conference telephone calls. The IEP must meet the
following standards:
(1) Be signed by an authorized DoDDS official before it becomes
valid.
(2) Include a determination that the DoDDS does not currently
have or cannot reasonably create an educational program appropriate
to meet the needs of the child with a disability.
(3) Include a determination that the non-DoDDS school or
facility and its educational program and related services conform to
the requirements of this part.
2. Cost of Tuition For Non-DoDDS School or Facility. The
Department of Defense is not authorized to fund non-DoDDS placement
unless it is directed by the DoDDS Area Superintendent in
coordination with the Director, DoDDS; or it is directed by an
impartial hearing officer or court of competent jurisdiction. A
valid IEP must document the necessity of the placement in a non-
DoDDS school or facility.
F. Procedural Safeguards for Children and Parents
Parents of children with disabilities are afforded procedural
safeguards to ensure that their children receive a free public
education consistent with appendix F to this part.
1. Notice of Procedural Safeguards
a. Parents shall be provided a written notice in a reasonable
time before one of the following:
(1) Receiving a proposal to initiate or change the
identification, evaluation, or educational placement of the child or
the provision of free public education to the child.
(2) Receiving refusal from the DoDDS to initiate or change the
identification, evaluation, or educational placement of the child or
the provision of a free public education.
b. The notice shall inform the parent of the following:
(1) Parental procedural rights detailed in appendix F to this
part.
(2) A description of the action proposed or refused by the DoDDS
with a brief explanation for the decision.
c. The notice shall be provided so as to ensure the parent's
understanding. That may be achieved by using simplified language,
delivering the notice in the parent's native language, or using an
interpreter or other person selected by the parents.
2. Parental Consent
a. The consent of a parent of a child with a disability or
suspected of having a disability shall be obtained before any of the
following:
(1) Initiation of formal evaluation procedures.
(2) Initial educational placement.
(3) Change in educational placement.
b. If the parent refuses consent to any formal evaluation or
initial placement in a special education program, the DoDDs or the
parent may do the following:
(1) Request a conference between the school and parents.
(2) Request mediation.
(3) Initiate an impartial due process hearing under appendix F
to this part, to show cause as to why an evaluation or placement in
a special education program should or should not occur without such
[[Page 2576]]
consent. If the hearing officer sustains the DoDDS position in the
impartial due process hearing, the DoDDS may evaluate or provide
special education and related services to the child without the
consent of a parent, subject to the further exercise of due process
rights.
3. Independent Evaluation
a. A parent is entitled to an independent evaluation at the
expense of the DoDDS if the parent disagrees with the DoDDS
evaluation of the child and successfully challenges the evaluation
in an impartial due process hearing. An independent evaluation
provided at the DoDDS expense must do the following:
(1) Conform to the requirements of this part.
(2) Be conducted, when possible, in the area where the child
resides.
(3) Meet DoD standards governing persons qualified to conduct an
educational evaluation including an evaluation for MRS.
b. If the final decision rendered in an impartial due process
hearing sustains the DoDDS evaluation, the parent has the right to
an independent evaluation, but not at the DoDDS expense.
c. The DoDDS, the CSC, and a hearing officer appointed under
this part shall consider any evaluation report presented by a
parent.
4. Access to Records. The parents of a child with a disability
shall be afforded an opportunity to inspect and review educational
records about the identification, evaluation, and educational
placement of the child, and the provision of a free public education
for the child.
5. Due Process Rights
a. The parent of a child with a disability or the DoDDS has the
opportunity to file a written petition for an impartial due process
hearing at the DoDDS expense under appendix F to this part. The
dispute may concern issues effecting a partial child's
identification, evaluation, or placement, or the provision of a free
and appropriate public education.
b. While an impartial due process hearing or judicial proceeding
is pending, unless the DoDDS and a parent of the child agree
otherwise, the child shall remain in the present educational
setting, subject to the disciplinary procedures prescribed in
section H. of this appendix.
6. Dispute Resolution--Other Complaints. A parent, teacher, or
other person covered by this part may file a written complaint about
any aspect of this part that is not a proper subject for
adjudication by a due process hearing officer, in accordance with
DSR 2500.10.\3\
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\3\ Copies of the appropriate forms are available at every
school office.
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G. Confidentiality of Records
The DoDDS officials shall maintain all student records, in
accordance with DoD Directive 5400.11.\4\
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\4\ See footnote 1 to section A. of this appendix.
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H. Disciplinary Procedures
All regular disciplinary rules and procedures applicable to
children receiving educational instruction in the DoDDS shall apply
to children with disabilities who violate school rules and
regulations or disrupt regular classroom activities, subject to the
following provisions:
1. Before suspending or expelling a child with a disability, the
CSC or, a child with a disability in a non-DoDDS school, authorized
DoDDS officials, shall determine the following:
a. Whether the behavioral conduct is the result of the child's
disability.
b. If any change in the educational placement is needed.
2. If it is determined that the child's conduct results in whole
or part from the disability, the child may not be subject to any
regular disciplinary rules and procedures and the following
procedures must be followed:
a. The child's parents shall be notified of the right to have an
IEP meeting before any change in the child's educational placement.
b. The CSC or authorized DoDDS officials shall ensure that a
meeting is held to determine the appropriate educational placement
for the child in consideration of the child's conduct.
c. The child may not be suspended for more than 10 days during a
school year.
3. A child with a disability may be suspended on an emergency
basis when it reasonably appears that the child's behavior may
endanger the health, welfare, or safety of self or any other child,
teacher, or school personnel. The following conditions apply:
a. The child's parents shall be notified immediately of that
suspension and of the time, purpose, and location of the CSC meeting
and of their right to attend the meeting.
b. That suspension remains in effect only for the duration of
the emergency.
4. If it is determined that the child requires a change in
educational placement, the CSC or, in the case of a child with a
disability in a non-DoDDS school, authorized DoDDS officials shall
ensure that a meeting is held to determine the appropriate
educational placement for the child in consideration of the child's
conduct.
Appendix C to Part 57--The National Advisory Panel (Nap) on the
Education of Dependents With Disabilities
A. Membership
The NAP shall meet as needed in publicly announced, accessible
meetings open to the general public and shall comply with DoD
Directive 5105.4\1\. The NAP members, appointed by the Secretary of
Defense, or designee, shall include at least one representative from
each of the following groups.
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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1. Persons with disabilities
2. The DoDDS special education teachers
3. The DoDDS regular education teachers.
4. Parents of children, ages 3 to 21, inclusive, who are
receiving special education from the DoDDS.
5. The staff personnel of the DoDDS Headquarters.
6. Special education program managers from the DoDDS field
activities.
7. Representatives of the Military Departments and overseas
commands, including providers of related services.
8. Providers of the DoD early intervention services.
9. Other appropriate persons.
B. Activities
1. The NAP shall perform the following activities:
a. Review information about improvements in service provided to
children with disabilities, ages 3 to 21, inclusive in the
Department of Defense.
b. Receive and consider comments from parents, students,
professional groups, and individuals with disabilities.
c. When necessary establish committees for short-term purposes
comprised of representatives from parent, student, professional
groups, and individuals with disabilities.
d. Review the findings of fact and decisions of each impartial
due process hearing conducted under appendix F of this part.
e. Assist in developing and reporting such information and
evaluations as may assist the Department of Defense.
f. Make recommendations based on program and operational
information for changes in policy and procedures and in the budget,
organization, and general management of the special education
program.
g. Comment publicly on rules or standards about the education of
children with disabilities, ages 3 to 21, inclusive.
h. Perform such other tasks as may be requested by the USD(P&R)
or the Director, DoDDS.
2. The NAP members shall serve under appointments that shall be
for a term not to exceed 3 years.
C. Reporting Requirements
Submit an annual report of the NAP's activities and suggestions
to the USD(P&R) and the Director, DoDDS, by July 31 of each year.
That report is exempt from formal review and licensing under section
E. of DoD Instruction 7750.7.\2\
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\2\ See footnote 1 to section A. of this appendix.
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Appendix D to Part 57--DoD Coordinating Committee on Early
Intervention, Special Education, and Medically Related Services
A. Committee Membership
The committee shall meet at least twice yearly to facilitate
collaboration in early intervention, special education, and
Medically Related Services (MRS) in the Department of Defense. The
committee shall consist of the following members:
1. A representative of the USD(P&R) or designee, who shall serve
as the Chair.
2. Representatives of the Secretaries of the Military
Departments.
3. Representatives of the Assistant Secretary of Defense (Health
Affairs) (ASD(HA)).
[[Page 2577]]
4. Representatives from the DoD school systems (domestic and
overseas).
5. Representatives from the GC, DoD.
B. Responsibilities
1. Advise and assist the USD(P&R) in the performance of his or
her responsibilities.
2. At the direction of the USD(P&R), advise and assist the
Military Departments, and the DoD school systems (overseas and
domestic) in the coordination of services among providers of early
intervention, special education, and MRS.
3. Ensure compliance in the provision of early intervention
services for infants and toddlers and special education and related
services for children ages 3 to 21, inclusive.
4. Oversee the coordination of early intervention, special
education, and related services.
5. Review the recommendations of the NAP and the Early
Intervention ICC to identify common concerns, ensure coordination of
effort, and forward issues requiring resolution to the USD(P&R).
6. Promote the coordination of services and information sharing
among the providers of early intervention, special education, and
MRS.
7. Assist in the coordination of assignments of sponsors who
have children with disabilities who are or who may be eligible for
special education and MRS in the DoDDS or the EIP through the
Military Departments.
Appendix E to Part 57--DoD Inter-Component Coordinating Council (ICC)
on Early Intervention
A. Council Membership
The USD(P&R) shall appoint members to the ICC. The Council shall
meet at least yearly in publicly announced, open meetings that are
accessible to the general public and shall comply with DoD Directive
5105.4.\1\ The Council shall be comprised of the following:
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\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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1. Parents. At least 20 percent of the members shall be parents
with infants or toddlers with disabilities or children ages 12 or
younger with disabilities, with knowledge of, or experience with,
programs for infants and toddlers with disabilities. At least one
such member shall be a parent of an infant or toddler or a child age
6 or younger.
2. Representatives of the Surgeons General of the Military
Departments.
3. Representatives of the family support programs of the
Military Departments.
4. Representatives from the ASD(HA).
5. Representative(s) from the DoDDS.
6. A representative from the GC, DoD.
B. Responsibilities
1. Advise and assist the Military medical Departments in the
performance of their responsibilities, particularly the
identification of appropriate resources and Agencies for providing
early intervention services and the promoting of inter-Component
agreements.
2. Advise and assist the DoDDS on the transition of toddlers
with disabilities to preschool services.
3. Identify strategies to address areas of conflict, overlap,
duplication, or omission of early intervention services.
4. Review policy memoranda on effective inter-Department and
inter-Component collaboration.
5. Review reports of technical assistance and monitoring
activities and make recommendations to improve the policies,
procedures, programs, and delivery of early intervention services.
6. Make recommendations based on program and operational
information for changes in the policy, procedures, budget,
organization, and general management of the EIPs.
7. Provide advice and technical assistance in the establishment,
membership, and operation of installation or command level ICCs.
8. When necessary, establish committees for short-term purposes
comprised of parents of children with disabilities, service
providers, and representatives of professional groups.
9. Submit an annual report of its activities and suggestions to
the USD(P&R) by July 31 of each year. That report is exempt from
formal review and licensing under section E. of DoD Instruction
7750.7.\2\
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\2\ See footnote 1 to section A. of this appendix.
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C. Procedures
1. The USD(P&R) shall nominate and select all members to the ICC
to include those listed in section A.1. of this appendix.
2. Appointments shall be for a term not to exceed 3 years except
for DoD personnel who are not representing the parent category of
membership.
3. The USD(P&R), or designee, shall call and conduct the meeting
of the Council.
Appendix F to Part 57--Mediation and Hearing Procedures
A. Purpose
This appendix establishes requirements for the resolution of
conflicts through mediation and impartial due process hearings.
Parents of infants, toddlers, and children who are covered by this
Instruction and, as the case may be, the cognizant Military
Department or the DoDDS are afforded impartial mediation and/or
impartial due process hearings and administrative appeals about the
provision of early intervention services, or the identification,
evaluation, educational placement of, and the FAPE provided to, such
children by the Department of Defense, in accordance with 20 U.S.C.
921 et seq. and 1400 et seq.
B. Mediation
1. Mediation may be initiated by either a parent or the Military
Department concerned, or the DoDDS to resolve informally a
disagreement on the early intervention services for an infant or
toddler or the identification, evaluation, educational placement of,
or the FAPE provided to, a child age 3 to 21, inclusive. The
cognizant Military Department, rather than the DoDDS, shall
participate in mediation involving early intervention services.
Mediation shall consist of, but not be limited to, an informal
discussion of the differences between the parties in an effort to
resolve those differences. The parents and the school or Military
Department officials may attend mediation sessions.
2. Mediation must be conducted, attempted, or refused in writing
by a parent of the infant, toddler, or child whose early
intervention or special education services (including related
services) are at issue before a request for, or initiation of, a
formal due process hearing authorized by this appendix. Any request
by the DoDDS or the Military Department for a hearing under this
appendix shall state how that requirement has been satisfied. No
stigma may be attached to the refusal of a parent to mediate or to
an unsuccessful attempt to mediate.
C. Hearing Administration
1. The Defense Office of Hearings and Appeals (DOHA) shall have
administrative responsibility for the proceedings authorized by
sections D. through G. of this appendix.
2. This appendix shall be administered to ensure that the
findings, judgments, and determinations made are prompt, fair, and
impartial.
3. Impartial hearing officers who shall be DOHA Administrative
Judges, shall be appointed by the Director, DOHA, and shall be
attorneys in good standing of the bar of any State, the District of
Columbia, or a territory or possession of the United States who are
independent of the DoDDS or the Military Department concerned in
proceedings conducted under this appendix. A parent shall have the
right to be represented in such proceedings, at no cost to the
Government, by counsel, and by persons with special knowledge or
training with respect to the problems of individuals with
disabilities. The DOHA Department counsel normally shall appear and
represent the DoDDS in proceedings conducted under this appendix,
when such proceedings involve a child age 3 to 21, inclusive. When
an infant or toddler is involved, the Military Department
responsible under this Instruction for delivering early intervention
services shall either provide its own counsel or request counsel
from DOHA.
D. Hearing Practice and Procedure
1. Hearing
a. Should mediation be refused or otherwise fail to resolve the
issues on the provision of early intervention services to an infant
or toddler or the identification or evaluation of such an
individual, the parent may request and shall receive a hearing
before a hearing officer to resolve the matter. The parents of an
infant or toddler and the Military Department concerned shall be the
only parties to a hearing conducted under this appendix.
b. Should mediation be refused or otherwise fail to resolve the
issues on the provision of a FAPE to a child with a disability, age
3 to 21, inclusive, or the identification, evaluation, or
educational placement of such an individual, the parent or the
school principal, for the DoDDS, may
[[Page 2578]]
request and shall receive a hearing before a hearing officer to
resolve the matter. The parents of a child age 3 to 21, inclusive,
and the DoDDS shall be the only parties to a hearing conducted under
this appendix.
c. The party seeking the hearing shall submit a written request,
in the form of a petition, setting forth the facts, issues, and
proposed relief, to the Director, DOHA. The petitioner shall deliver
a copy of the petition to the opposing party (i.e., the parent or
the school principal, for the DoDDS, or the military MTF commander,
for the Military Department), either in person or by first-class
mail, postage prepaid. Delivery is complete on mailing. When the
DoDDS or the Military Department petitions for a hearing, it shall
inform the other parties of the deadline for filing an answer under
paragraph D.1.c. of this appendix, and shall provide the other
parties with a copy of this part.
d. An opposing party shall submit an answer to the petition to
the Director, DOHA, with a copy to the petitioner, within 15
calendar days of receipt of the petition. The answer shall be as
full and complete as possible, addressing the issues, facts, and
proposed relief. The submission of the answer is complete on
mailing.
e. In 10 calendar days after receiving the petition, the
Director, DOHA, shall assign a hearing officer, who then shall have
jurisdiction over the resulting proceedings. The Director, DOHA,
shall forward all pleadings to the hearing officer.
f. The questions for adjudication shall be based on the petition
and the answer, if a party may amend a pleading if the amendment is
filed with the hearing officer and is received by the other parties
at least 5 calendar days before the hearing.
g. The Director, DOHA, shall arrange for the time and place of
the hearing, and shall provide administrative support. Such
arrangements shall be reasonably convenient to the parties.
h. The purpose of a hearing is to establish the relevant facts
necessary for the hearing officer to reach a fair and impartial
determination of the case. Oral and documentary evidence that is
relevant and material may be received. The technical rules of
evidence shall be relaxed to permit the development of a full
evidentiary record, with the ``Federal Rules of Evidence'' (Rules 1-
1102) of 28 U.S.C., serving as a guide.
i. The hearing officer shall be the presiding officer, with
judicial powers to manage the proceeding and conduct the hearing.
Those powers shall include the authority to order an independent
evaluation of the child at the expense of the DoDDS or the Military
Department concerned and to call and question witnesses.
j. Those normally authorized to attend a hearing shall be the
parents of the individual with disabilities, the counsel and
personal representative of the parents, the counsel and professional
employees of the DoDDS or the Military Department concerned, the
hearing officer, and a person qualified to transcribe or record the
proceedings. The hearing officer may permit other persons to attend
the hearing, consistent with the privacy interests of the parents
and the individual with disabilities, if the parents have the right
to an open hearing on waiving in writing their privacy rights and
those of the individual with disabilities.
k. A verbatim transcription of the hearing shall be made in
written or electronic form and shall become a permanent part of the
record. A copy of the written transcript or electronic record of the
hearing shall be made available to a parent on request and without
cost. The hearing officer may allow corrections to the written
transcript or electronic recording for conforming it to actual
testimony after adequate notice of such changes is given to all
parties.
l. The hearing officer's decision of the case shall be based on
the record, which shall include the petition, the answer, the
written transcript or the electronic recording of the hearing,
exhibits admitted into evidence, pleadings or correspondence
properly filed and served on all parties, and such other matters as
the hearing officer may include in the record, if such matter is
made available to all parties before the record is closed under
paragraph D.1.m. of this appendix.
m. The hearing officer shall make a full and complete record of
a case presented for adjudication.
n. The hearing officer shall decide when the record in a case is
closed.
o. The hearing officer shall issue findings of fact and render a
decision in a case not later than 50 calendar days after being
assigned to the case, unless a discovery request under section D.2.
of this appendix, is pending.
2. Discovery
a. Full and complete discovery shall be available to parties to
the proceeding, with the ``Federal Rules of Civil Procedure,'' Rules
26-37, codified at 28 U.S.C. serving as a guide.
b. If voluntary discovery cannot be accomplished, a party
seeking discovery may file a motion with the hearing officer to
accomplish discovery, provided such motion is founded on the
relevance and materiality of the proposed discovery to the issues.
An order granting discovery shall be enforceable as is an order
compelling testimony or the production of evidence.
c. A copy of the written or electronic transcription of a
deposition taken by the DoDDS or the Military Department concerned
shall be made available free of charge to a parent.
3. Witnesses; Production of Evidence
a. All witnesses testifying at the hearing shall be advised that
it is a criminal offense knowingly and willfully to make a false
statement or representation to a Department or Agency of the U.S.
Government as to any matter in the jurisdiction of that Department
or Agency. All witnesses shall be subject to cross-examination by
the parties.
b. A party calling a witness shall bear the witness' travel and
incidental expenses associated with testifying at the hearing. The
DoDDS or the Military Department concerned shall pay such expenses
when a witness is called by the hearing officer.
c. The hearing officer may issue an order compelling the
attendance of witnesses or the production of evidence on the hearing
officer's own motion or, if good cause be shown, on motion of a
party.
d. When the hearing officer determines that a person has failed
to obey an order to testify or to produce evidence, and such failure
is in knowing and willful disregard of the order, the hearing
officer shall so certify.
e. The party or the hearing officer seeking to compel testimony
or the production of evidence may, on the certification provided for
in paragraph D.3.d. of this appendix, file an appropriate action in
a court of competent jurisdiction to compel compliance with the
hearing officer's order.
4. Hearing Officer's Findings of Fact and Decision
a. The hearing officer shall make written findings of fact and
shall issue a decision setting forth the questions presented, the
resolution of those questions, and the rationale for the resolution.
The hearing officer shall file the findings of fact and decision
with the Director, DOHA, with a copy to the parties.
b. The Director, DOHA, shall forward to the Director, DoDDS, or
to the Military Department concerned, and to the NAP or the ICC, as
appropriate, copies with all personally identifiable information
deleted, of the hearing officer's findings of fact and decision or,
in cases that are administratively appealed, of the final decision
of the DOHA Appeal Board.
c. The hearing officer shall have the authority to impose
financial responsibility for early intervention services,
educational placements, evaluations, and related services under his
or her findings of fact and decision.
d. The findings of fact and decision of the hearing officer
shall become final unless a notice of appeal is filed under section
F.1. The DoDDS or the Military Department concerned shall implement
a decision as soon as practicable after it becomes final.
E. Determination Without Hearing
1. At the request of a parent of an infant, toddler, or child
age 3 to 21, inclusive, when early intervention or special
educational (including related) services are at issue, the
requirement for a hearing may be waived, and the case may be
submitted to the hearing officer on written documents filed by the
parties. The hearing officer shall make findings of fact and issue a
decision in the period fixed by paragraph D.1.o. of this appendix.
2. The DoDDS or the Military Department concerned may oppose a
request to waive that hearing. In that event, the hearing officer
shall rule on that request.
3. Documents submitted to the hearing officer in a case
determined without a hearing shall comply with paragraph D.1.h. of
this appendix. A party submitting such documents shall provide
copies to all other parties.
F. Appeal
1. A party may appeal the hearing officer's findings of fact and
decision by filing a written notice of appeal with the Director,
DOHA, within 5 calendar days of receipt of the findings of fact and
decision. The notice of appeal must contain the appellant's
certification that a copy of the notice of appeal has been provided
to all other parties. Filing is complete on mailing.
[[Page 2579]]
2. Within 10 calendar days of filing the notice of appeal, the
appellant shall submit a written statement of issues and arguments
to the Director, DOHA, with a copy to the other parties. The other
parties shall submit a reply or replies to the Director, DOHA,
within 15 calendar days of receiving the statement, and shall
deliver a copy of each reply to the appellant. Submission is
complete on mailing.
3. The Director, DOHA, shall refer the matter on appeal to the
DOHA Appeal Board. It shall determine the matter, including the
making of interlocutory rulings, within 60 calendar days of
receiving timely submitted replies under section F.2. of this
appendix. The DOHA Appeal Board may require oral argument at a time
and place reasonably convenient to the parties.
4. The determination of the DOHA Appeal Board shall be a final
administrative decision and shall be in written form. It shall
address the issues presented and set forth a rationale for the
decision reached. A determination denying the appeal of a parent in
whole or in part shall state that the parent has the right under 20
U.S.C. 921 et seq. and 1400 et seq., to bring a civil action on the
matters in dispute in a district court of the United States without
regard to the amount in controversy.
5. No provision of this Instruction or other DoD guidance may be
construed as conferring a further right of administrative review. A
party must exhaust all administrative remedies afforded by this
appendix before seeking judicial review of a determination made
under this appendix.
G. Publication and Indexing of Final Decisions
The Director, DOHA, shall ensure that final decisions in cases
arising under this appendix are published and indexed to protect the
privacy rights of the parents who are parties in those cases and the
children of such parents, in accordance with DoD Directive
5400.11\1\.
\1\ Copies may be obtained, at cost, from the National Technical
Information Service, 5285 Port Royal Road, Springfield, VA 22161.
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Dated: January 9, 1997.
L.M. Bynum,
Alternate OSD Federal Register Liaison Officer, Department of Defense.
[FR Doc. 97-888 Filed 1-16-97; 8:45 am]
BILLING CODE 5000-04-M
