97-28006. Assistance to States for the Education of Children With Disabilities, Preschool Grants for Children With Disabilities, and Early Intervention Program for Infants and Toddlers With Disabilities  

  • [Federal Register Volume 62, Number 204 (Wednesday, October 22, 1997)]
    [Proposed Rules]
    [Pages 55026-55135]
    From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
    [FR Doc No: 97-28006]
    
    
    
    [[Page 55025]]
    
    _______________________________________________________________________
    
    Part V
    
    
    
    
    
    Department of Education
    
    
    
    
    
    _______________________________________________________________________
    
    
    
    34 CFR Parts 300, 301, and 303
    
    
    
    Assistance to States for the Education of Children With Disabilities, 
    Preschool Grants for Children With Disabilities, and Early Intervention 
    Program for Infants and Toddlers With Disabilities; Proposed Rule
    
    Federal Register / Vol. 62, No. 204 / Wednesday, October 22, 1997 / 
    Proposed Rules
    
    [[Page 55026]]
    
    
    
    DEPARTMENT OF EDUCATION
    
    34 CFR Parts 300, 301 and 303
    
    RIN 1820-AB40
    
    
    Assistance to States for the Education of Children With 
    Disabilities, Preschool Grants for Children With Disabilities, and 
    Early Intervention Program for Infants and Toddlers With Disabilities
    
    AGENCY: Office of Special Education and Rehabilitative Services, 
    Department of Education.
    
    ACTION: Notice of proposed rulemaking.
    
    -----------------------------------------------------------------------
    
    SUMMARY: The Secretary proposes to amend the regulations governing the 
    Assistance to States for Education of Children with Disabilities 
    program, the Preschool Grants for Children with Disabilities program, 
    and the Early Intervention Program for Infants and Toddlers with 
    Disabilities. These amendments are needed to implement changes recently 
    enacted by the Individuals with Disabilities Education Act Amendments 
    of 1997.
    
    DATES: Comments must be received by the Department on or before January 
    20, 1998.
        The Department plans to hold public meetings in conjunction with 
    this NPRM. The dates and times of the meetings are in the section 
    titled Public Meetings under Invitation to Comment elsewhere in this 
    preamble.
    
    ADDRESSES: All comments concerning these proposed regulations should be 
    addressed to Thomas Irvin, Office of Special Education and 
    Rehabilitative Services, U.S. Department of Education, Room 3090, Mary 
    E. Switzer Building, 330 C Street., SW., Washington, DC 20202. Comments 
    may also be sent through the Internet to: comment@ed.gov
        You must include the term ``Assistance for Education'' in the 
    subject line of your electronic message.
        Comments that concern information collection requirements must be 
    sent to the Office of Management and Budget at the address listed in 
    the Paperwork Reduction Act section of this preamble. A copy of those 
    comments may also be sent to the Department representative named in the 
    ADDRESSES section.
        The Department plans to hold public meetings in conjunction with 
    this NPRM. The locations of the meetings are in the section titled 
    Public Meetings under Invitation to Comment elsewhere in this preamble.
    
    FOR FURTHER INFORMATION CONTACT: Thomas Irvin (202) 205-8969 or JoLeta 
    Reynolds (202) 205-5507. Individuals who use a telecommunications 
    device for the deaf (TDD) may call (202) 205-5465.
        Individuals with disabilities may obtain this document in an 
    alternate format (e.g., Braille, large print, audiotape, or computer 
    diskette) on request to Katie Mimcy, Director of the Alternate Formats 
    Center. Telephone: (202) 205-8113.
    
    SUPPLEMENTARY INFORMATION:
    
    Invitation to Comment
    
        Interested persons are invited to submit comments and 
    recommendations regarding these proposed regulations. To ensure that 
    public comments have maximum effect in developing the final 
    regulations, the Department urges commenters to identify clearly the 
    specific section or sections of the proposed regulations that each 
    comment addresses and to arrange comments in the same order as the 
    proposed regulations.
        All comments submitted in response to these proposed regulations 
    will be available for public inspection, during and after the comment 
    period, in Room 3090, Mary E. Switzer Building, 300 C St., SW., 
    Washington, DC, between the hours of 8:30 a.m. and 4:00 p.m., Eastern 
    time, Monday through Friday of each week except Federal holidays.
        On request the Department supplies an appropriate aid, such as a 
    reader or print magnifier, to an individual with a disability who needs 
    assistance to review the comments or other documents in the public 
    rulemaking docket for these proposed regulations. An individual with a 
    disability who wants to schedule an appointment for this type of aid 
    may call (202) 205-8113 or (202) 260-9895. An individual who uses a TDD 
    may call the Federal Information Relay Service at 1-800-877-8339, 
    between 8 a.m. and 8 p.m., Eastern time, Monday through Friday.
        To assist the Department in complying with the specific 
    requirements of Executive Order 12866 and its overall requirement of 
    reducing regulatory burden, the Secretary invites comments on whether 
    there may be further opportunities to reduce any regulatory burdens 
    found in these proposed regulations.
    
    Public Meetings
    
        In a notice published in the Federal Register on September 17, 1997 
    (62 FR 48923-48925), the Department announced public meetings to obtain 
    public comment on the statutory requirements of the IDEA Amendments of 
    1997. The Department will use those public meeting dates and times for 
    public comment on this NPRM. Individuals who wish to make a statement 
    at any of the meetings are encouraged to do so. Time allotted for each 
    individual to testify will be limited and will depend on the number of 
    speakers wishing to testify at each session. It is likely that each 
    participant choosing to comment will be limited to four minutes. 
    Persons interested in making oral public comment will be able to sign-
    up to make a statement on the day of the meeting at the Department's 
    public meeting on-site registration desk on a first-come-first served 
    basis. If no time slots remain, then the Department will reserve a 
    limited amount of additional time at the end of each hearing to 
    accommodate those individuals. (Every effort will be made to have ample 
    time to hear all individuals who wish to make a statement.) For 
    individuals who want to speak at the public meeting, registration will 
    begin at 1:00 p.m., in all cities except Washington, DC where it will 
    begin at 12:00 Noon, in each hotel or public building at the 
    registration table outside the room where the public meeting will be 
    held. The dates, times, and locations of the meetings are as follows:
    
    October 23, 1997--2:00 p.m.-7:00 p.m.
    
    Region I--Logan Ramada Hotel, 75 Service Road, Logan International 
    Airport, Boston, MA 02128
    
    October 27, 1997--2:00 p.m.-7:00 p.m.
    
    Region IV--Radisson Hotel Atlanta, 165 Courtland and International 
    Blvd., Atlanta, GA 30303
    
    October 28, 1997--2:00 p.m.-7:00 p.m.
    
    Region VI--Radisson Hotel Dallas, 1893 West Mockingbird Lane, Dallas, 
    TX 75235
    
    November 4, 1997--1:00 p.m.-5:00 p.m.
    
    Department of Education, Government Service Administration (GSA), 7th 
    and D Streets, S.W. (Auditorium), Washington, D.C. 20407
    
    November 18, 1997--2:00 p.m.-7:00 p.m.
    
    Region VIII--Four Points, 3535 Quebec Street, Denver, CO 80207
    
    November 21, 1997--2:00 p.m.-7:00 p.m.
    
    Region IX--Holiday Inn Select/Chinatown, 750 Kearny Street, San 
    Francisco, CA 94108
    
    November 24, 1997--2:00 p.m.-7:00 p.m.
    
    Region V--Sheraton North Shore, 933 Skokie Boulevard, Northbrook, IL 
    60062
    
    
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        The meeting sites are accessible to individuals with disabilities. 
    An individual with a disability who will need an auxiliary aid or 
    service to participate in the meeting (e.g., interpreting service, 
    assistive listening device, or materials in an alternate format) should 
    consult the notice mentioned in this document for the person to contact 
    at least two weeks before the scheduled meeting date to ensure that 
    accommodations requested will be available. Although the Department 
    will attempt to meet a request received after that date, the requested 
    accommodation may not be available because of insufficient time to 
    arrange it.
    
    Background
    
        On June 4, 1997, the Individuals with Disabilities Education Act 
    (IDEA) Amendments of 1997 were enacted into law as Pub. L. 105-17.
        The statute passed by Congress and signed by the President 
    reauthorizes and makes significant changes to IDEA to better accomplish 
    the following purposes: (1) Ensure that all children with disabilities 
    have available a free appropriate public education that emphasizes 
    special education and related services designed to meet their unique 
    needs and prepare them for employment and independent living; (2) 
    ensure that the rights of children with disabilities and parents of 
    those children are protected; (3) assist States, localities, 
    educational service agencies, and Federal agencies to provide for the 
    education of all children with disabilities; (4) assist States in the 
    implementation of a statewide, comprehensive, coordinated, 
    multidisciplinary, interagency system of early intervention services 
    for infants and toddlers with disabilities and their families; (5) 
    ensure that educators and parents have the necessary tools to improve 
    educational results for children with disabilities by supporting 
    systemic-change activities; coordinated research and personnel 
    preparation; coordinated technical assistance, dissemination, and 
    support; and technology development and media services; and (6) assess, 
    and ensure the effectiveness of, efforts to educate children with 
    disabilities.
        On June 27, 1997, the Secretary published a notice in the Federal 
    Register requesting from the public advice and recommendations on 
    regulatory issues under the IDEA Amendments of 1997. As of the end of 
    August, 1997, 334 comments were received in response to the Notice, 
    including letters from parents and public and private agency personnel, 
    and from parent-advocate and professional organizations. The comments 
    addressed each major provision of the IDEA Amendments of 1997 (such as 
    the new funding provisions, discipline procedures, provisions relating 
    to evaluation of children, individualized education programs, 
    participation of private school children with disabilities, methods of 
    ensuring services from noneducational agencies, and changes in the 
    procedural safeguards). All of these comments were reviewed and 
    considered in developing this Notice of Proposed Rulemaking. The 
    Secretary appreciates the thoughtful attention of the commenters in 
    responding to the June 27th notice.
    
    Proposed Regulatory Changes
    
        The IDEA Amendments of 1997 significantly updated the Assistance to 
    States program under Part B of the Act, as in effect before June 4, 
    1997. The changes made by those Amendments call for corresponding 
    updates to virtually all of the current regulations under this part, as 
    well as new regulatory provisions to incorporate new statutory 
    requirements such as those relating to performance goals and 
    indicators, procedural safeguards notice, mediation, and discipline.
        In addition to incorporating new requirements from the Act, some 
    new provisions and notes are proposed to assist in clarifying the new 
    statutory requirements, or providing guidance with respect to 
    implementing those requirements. Finally, some changes are needed to 
    incorporate longstanding interpretations of the Act that have been 
    addressed in nonregulatory guidance in the past, or to ensure a more 
    meaningful implementation of the Act and its regulations for children 
    with disabilities, parents and public agencies.
        To accommodate the reader in understanding these proposed changes, 
    the Secretary has elected to publish the full text of the regulations, 
    as they would be when amended, rather than simply publish an amendatory 
    document that shows only the changes proposed to current regulations. 
    Although this approach increases the length of this NPRM, it provides a 
    more meaningful way for parents, agency officials, and the general 
    public to review the changes within the context of the existing 
    regulations.
        The following summary of the proposed regulatory changes describes 
    how the Secretary would incorporate the statutory changes of the IDEA 
    Amendments of 1997 into the applicable subparts of the Department's 
    regulations for the Assistance to States program (34 CFR part 300) and 
    Preschool Grants program (34 CFR part 301) for children with 
    disabilities, along with conforming changes to the Early Intervention 
    program for Infants and Toddlers with Disabilities (34 part 303). The 
    Department plans to publish additional technical amendments to Part 303 
    at a later date. Those amendments will revise the Part 303 regulations 
    consistent with the changes made by the IDEA Amendments of 1997. This 
    summary identifies changes that are statutory and describes any 
    regulations that the Secretary is proposing in this NPRM to implement 
    these statutory provisions.
        Commenters are requested to direct their comments to issues that 
    can be changed through regulation and not to statutory requirements. 
    Commenters also are reminded that, under section 607(b) of the IDEA, 
    the Secretary is not authorized to make regulatory changes to lessen 
    the protections for children with disabilities in the IDEA regulations 
    that were in effect on July 20, 1983, absent statutory changes 
    indicating a Congressional intent to lessen those protections.
        Throughout this preamble, issues that the Secretary is proposing to 
    regulate on are introduced by phrases such as, ``The Secretary proposes 
    * * *'' or ``In this proposed section, the Secretary proposes * * *''. 
    Commenters are asked to focus their comments on these parts of the 
    proposed regulation.
        Appendix C to the current regulations (Interpretation of IEP 
    program requirements) would be updated and revised consistent with the 
    changes made by the IDEA Amendments of 1997 and these proposed 
    regulations. Revised Appendix C is presented as Appendix C to this 
    NPRM.
        To aid readers in referring between this NPRM and current 
    regulations, a distribution table for the part 300 regulations is 
    presented in Appendix D to these proposed regulations. That table 
    identifies each current regulatory section and the comparable proposed 
    regulatory section, if any.
        These proposed regulations would implement the new statutory 
    changes relating to the three formula grant programs in the IDEA: (1) 
    the Assistance to States for the Education of Children with 
    Disabilities Program under Part B of the Act (34 CFR part 300); (2) the 
    Preschool Grants Program under section 619 of the Act (34 CFR part 
    301); and (3) the Early Intervention Program for Infants and Toddlers 
    with Disabilities under Part H of the Act (to be renamed part C on July 
    1, 1998) (34 CFR part 303).
    
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    1. Part 300--Assistance to States for the Education of Children 
    With Disabilities
    
        The new statutory amendments to the IDEA, while retaining (and 
    strengthening) the basic rights and protections included in the Act 
    since 1975, also have redirected the focus of the law as in effect 
    before June 4, 1997, to heighten attention to improving results for 
    children with disabilities. This shift in focus was necessary in order 
    to make needed improvements in the Part B program, based on 20 years of 
    experience and research in the education of children with disabilities. 
    The amendments to the Part B program were the result of over three 
    years of intensive work by stakeholders from all realms of life and at 
    all governmental levels, who have a vested interest in the education of 
    children with disabilities.
    
    Background and Need for Improvements
    
        Before enactment of the 1975 amendments to the IDEA (then known as 
    the Education of the Handicapped Act (EHA)), approximately one million 
    children with disabilities were excluded entirely from the public 
    education system, and more than half of all children with disabilities 
    in the United States did not receive appropriate educational services 
    that would enable them to enjoy full equality of opportunity. The 1975 
    amendments to the EHA--the Education for All Handicapped Children Act 
    (Pub. L. 94-142)--directly addressed the problems that existed at that 
    time by establishing the right to education for all children with 
    disabilities.
        As a result of the Pub. L. 94-142 Amendments to the IDEA, 
    significant progress has been made in addressing the problems that 
    existed in 1975. Today, every State in the nation has laws in effect 
    ensuring the provision of a free appropriate public education (FAPE) to 
    all children with disabilities. The number of young adults with 
    disabilities enrolled in post-secondary education has tripled, and the 
    unemployment rate for individuals with disabilities in their twenties 
    is almost half that of their older counterparts.
        Despite the progress that has been made since 1975, the promise of 
    the law has not been fulfilled for many children covered by the Act. 
    Too many students with disabilities are failing courses and dropping 
    out of school. Almost twice as many students with disabilities drop out 
    as compared to students without disabilities. And, when students with 
    disabilities drop out of school, they are less likely to ever return to 
    school and are more likely to be unemployed or have problems with the 
    law. Further, almost half of the students with disabilities do not 
    participate in statewide assessments, and, therefore, schools are not 
    held accountable for results. Students from minority backgrounds 
    continue to be placed disproportionately in separate special education 
    settings.
        Over 20 years of experience and research in implementing Part B of 
    the IDEA has demonstrated that the education of children with 
    disabilities can be made more effective by--
        (1) Having high expectations of these children and ensuring their 
    access to the general curriculum to the maximum extent possible;
        (2) Strengthening the role of parents and fostering partnerships 
    between parents and schools;
        (3) Aligning the Part B program with State and local improvement 
    efforts so that students with disabilities can benefit from them;
        (4) Providing incentives for whole-school approaches and pre-
    referral intervention to reduce the need to label children as disabled 
    in order to address their learning needs;
        (5) Focusing resources on teaching and learning, while reducing 
    paperwork and requirements that do not assist in improving educational 
    results; and
        (6) Supporting high-quality, intensive professional development for 
    all personnel who work with disabled children to ensure that they have 
    the skills and knowledge necessary to effectively assist these children 
    to be prepared for employment and independent living.
        The IDEA Amendments of 1997 are designed to make improvements in 
    the Part B program that address many of the factors based on experience 
    and research that are identified in the preceding paragraphs. A 
    description of some of these improvements is included in the following 
    paragraphs, together with an identification of where the statutory 
    provisions have been incorporated into these proposed regulations:
    
    Improving Results for Children With Disabilities
    
        The focus of the changes in the new amendments is directed at 
    improving results for children with disabilities--by promoting early 
    identification and early provision of services, and ensuring the access 
    of these children to the general curriculum and general educational 
    reforms. The amendments include a number of provisions to address this 
    goal.
    
    A. Early Identification and Provision of Services
    
        The Early Intervention Program for Infants and Toddlers with 
    disabilities and the Preschool Grants program have demonstrated the 
    importance of early intervention. Children who receive services at an 
    early age are often better able to learn once they reach school age. In 
    addition, research on school-aged children who are experiencing 
    significant reading or behavior problems has shown that the common 
    practice of waiting until the third or fourth grade to refer those 
    children to special education only increases these problems. 
    Appropriate interventions need to happen as early as possible in a 
    child's life, when it is clear that the child needs help, and at a 
    time, developmentally, when the child could profit most from receiving 
    services.
        The IDEA Amendments of 1997 include provisions that encourage 
    States to reach out to young children who are experiencing learning 
    problems, and allow States and local school districts to utilize 
    ``developmental delay'' eligibility criteria as an alternative to 
    specific disability categories through age 9. Implemented properly, 
    this provision will allow children to receive earlier and more 
    appropriate interventions.
        The amendments also allow for more flexible use of IDEA-funded 
    staff who work in general education classrooms or other education-
    related settings so that they can work with both children who have 
    disabilities and others who may need their help. These provisions are 
    included in Secs. 300.7 and 300.235 of this NPRM.
    
    B. IEPs That Focus on Improving Results Through the General Curriculum
    
        The new amendments enhance the participation of disabled children 
    in the general curriculum through improvements to the IEP by--(1) 
    Relating a child's education to what nondisabled children are 
    receiving; (2) providing for the participation of regular education 
    teachers in developing, reviewing, and revising the IEP; and (3) 
    requiring that the IEP team consider the specific needs of each child, 
    as appropriate, such as the need for behavior interventions and 
    assistive technology. These provisions are included in Secs. 300.344, 
    and 300.346-300.347 of these proposed regulations.
    
    C. Education With Nondisabled Children
    
        Research data show that for most students with disabilities 
    integration into general education programs with nondisabled children 
    is often associated
    
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    with improved results, higher levels of employment and independent 
    living. The data also show that if disabled students are simply placed 
    in general education classrooms without necessary supports and 
    modifications they are more likely to drop out of school than their 
    nondisabled peers. The new amendments address this issue by requiring 
    that the IEP include: (1) An explanation of the extent, if any, to 
    which the child will not participate with nondisabled children in the 
    regular class; and (2) a statement of the specific special education 
    and related services and supplementary aids and services to be provided 
    to the child or on behalf of the child, and a statement of program 
    modifications or supports for school personnel that will be provided 
    for the child. These provisions are incorporated in Sec. 300.347 of 
    these proposed regulations.
    
    D. Higher Expectations for Disabled Students and Agency Accountability
    
        A critical element in improving educational results for disabled 
    children is promoting high expectations for them commensurate with 
    their particular needs, and ensuring meaningful and effective access to 
    the general curriculum. Data and experience show that when schools have 
    high expectations for these children, ensure their access to the 
    general curriculum, whenever appropriate, and provide them the 
    necessary supports and accommodations, many can achieve to higher 
    standards, and all can achieve more than society has historically 
    expected.
        Despite the current knowledge base in this regard, the education 
    system often fails to promote such high expectations or to establish 
    meaningful education goals, and about half of all disabled children are 
    excluded from State and district-wide assessments.
        The new amendments specifically address these concerns by requiring 
    (1) the development of State performance goals for children with 
    disabilities that must address certain key indicators of the success of 
    educational efforts for these children--including, at a minimum, 
    performance on assessments, dropout rates, and graduation rates, and 
    regular reports to the public on progress toward meeting the goals; (2) 
    that children with disabilities be included in general State and 
    district-wide assessments, with appropriate accommodations, if 
    necessary, and (3) that schools report to parents on the progress of 
    their disabled child as often as such reports are provided to parents 
    of nondisabled children. These provisions are included in 
    Secs. 300.137-300.138 and 300.347 of the proposed regulations.
        The IDEA Amendments of 1997 also contemplate that State performance 
    goals and indicators will have a crucial role in determining personnel 
    training and development needs, and offer additional funding, through 
    the State Improvement Program authorized under Part D of the Act, to 
    help States meet their goals for children with disabilities. These 
    provisions are addressed in Secs. 300.380-300.382. Additionally, States 
    are encouraged to offer funding to school districts to foster capacity 
    building and systemic improvement activities, as addressed in proposed 
    Secs. 300.622-300.624. School districts are also authorized to 
    establish school-based improvement programs, as described in 
    Secs. 300.234 and 300.245-300.250.
    
    E. Strengthening the Role of Parents and Fostering Partnerships Between 
    Parents and Schools
    
        In order to achieve better results for children with disabilities, 
    it is critical to strengthen the role of parents, and to provide a 
    means for parents and school staff to work together in a constructive 
    manner. The IDEA Amendments of 1997 include several provisions aimed at 
    promoting the involvement of parents, including providing that they: 
    (1) Have an opportunity to participate in meetings with respect to the 
    identification, evaluation, or educational placement of their child or 
    the provision of FAPE to the child; (2) are included in any group that 
    makes decisions on the educational placement of their child; and (3) 
    receive regular reports on their child's progress (by such means as 
    report cards) as often as reports are provided to parents of 
    nondisabled children.
        The amendments also require that, at a minimum, parents be offered 
    mediation as a voluntary option whenever a hearing is requested to 
    resolve a dispute between the parents and the agency about any matters 
    specified in the preceding paragraph. These provisions are included in 
    Secs. 300.347, 300.501, and 300.506 of this NPRM.
    
    F. Reducing Unnecessary Paperwork and Other Burdens
    
        The IDEA Amendments of 1997 include several provisions that reduce 
    unnecessary paperwork, and direct resources to teaching and learning. 
    For example, the amendments permit initial evaluations and 
    reevaluations to be based on existing evaluation data and reports, and 
    do not require that eligibility be re-established when a triennial 
    evaluation is conducted if the IEP team agrees that the child continues 
    to have a disability. The amendments also eliminate unnecessary 
    paperwork requirements that discourage the use of IDEA funds for 
    teachers who work in regular classrooms, while ensuring that the needs 
    of students with disabilities are met. These provisions are included 
    under Secs. 300.234 and 300.533 of this NPRM.
        In addition, these amendments permit States and local educational 
    agencies to establish eligibility only once by providing policies and 
    procedures to demonstrate that the eligibility conditions under part B 
    are met. Thereafter, only amendments to those policies and procedures 
    necessitated by identified compliance problems or changes in the law 
    would be required. These provisions are included under Secs. 300.110-
    300.111 and 300.180-300.181.
    
    Subpart A--General
    
    Purposes, Applicability, and Regulations That Apply to This Program
        Proposed Sec. 300.1 would retain the statement of the purposes of 
    this part in the existing regulations, except for conforming those 
    purposes to the new statutory changes. Consistent with section 
    601(d)(1)(A) of the Act, the purpose in proposed Sec. 300.1(a) 
    (relating to ensuring that all children with disabilities have 
    available to them a free appropriate public education designed to meet 
    their unique needs) would be amended to add ``and to prepare them for 
    employment and independent living.'' This change represents a 
    significant shift in the emphasis of the Assistance to States program--
    to an outcome oriented approach that focuses on better results for 
    children with disabilities rather than on simply ensuring their access 
    to education.
        Consistent with section 601(d)(1)(C) of the Act, the purpose in 
    Sec. 300.1(c) (relating to assisting States and localities to provide 
    for the education of children with disabilities) would be amended by 
    adding ``educational service agencies'' and ``Federal agencies'' to the 
    list of entities that would be assisted under this part.
        A note would be added following proposed Sec. 300.1 that emphasizes 
    the importance of independent living in promoting the integration and 
    full inclusion of individuals with disabilities into the mainstream of 
    American society, consistent with the new statutory purpose under 
    Sec. 300.1(a) (relating to employment and independent living). The note 
    describes the philosophy of independent living
    
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    contained in Section 701 of the Rehabilitation Act of 1973.
        Proposed Sec. 300.2 (relating to the applicability of these 
    regulations to State, local, and private agencies) would maintain the 
    current regulatory provisions of this section, except for the following 
    changes to conform the section to the new statutory provisions: First, 
    paragraph (b) would be amended to eliminate the reference to State 
    plans. The newly revised Act (Section 612(a)) no longer requires States 
    to submit State plans. (See Subpart B, ``State Eligibility--General,'' 
    for discussion of the statutory elimination of State plan 
    requirements). Second, consistent with new statutory provisions 
    relating to children with disabilities who are incarcerated, paragraph 
    (b)(4) of Sec. 300.2 would be amended to replace the term ``State 
    correctional facilities'' with the term ``State and local juvenile and 
    adult correctional facilities''.
        Proposed Sec. 300.3 would update the list of regulations that apply 
    to this program. Under proposed paragraph (a) of this section, the 
    regulations in 34 CFR part 76 (State Administered Programs) would 
    continue to apply to the Part B program, except for the following 
    sections:
        Sections 76.125-76.137 (relating to ``Consolidated Grant 
    Applications for Insular Areas'') no longer apply. A new statutory 
    provision in section 611(b)(4) of the Act expressly prohibits the 
    consolidation of Part B grants provided to the outlying areas (defined 
    in Sec. 300.718) or to the ``freely associated States'' (defined in 
    section 611(b)(6) of the Act).
        Sections 76.650-76.662 (relating to ``Participation of Children 
    Enrolled in Private Schools'') would no longer apply because the 
    applicable provisions of these regulations, that have applied to the 
    Part B program for many years, would be incorporated into Subpart D of 
    this part (``Children in Private Schools''), and specifically under the 
    provisions relating to ``Children with Disabilities Enrolled by their 
    Parents in Private Schools'' (Secs. 300.450-300.462).
        All other regulations identified in Sec. 300.3 of the existing 
    regulations for this part would be retained under proposed Sec. 300.3, 
    except for 34 CFR part 86 (``Drug-Free Schools and Campuses'') because 
    those regulations are no longer applicable to State administered 
    programs, and now apply only to institutions of higher education.
    Definitions
        The proposed regulations under this part would retain the scheme 
    used in the current regulations relating to defining terms that are 
    used in this part--that is, Subpart A would include definitions of all 
    terms that are used in two or more subparts of the regulations, whereas 
    any term that would be used in only a single section or subpart would 
    only be listed in Subpart A, together with a reference to the specific 
    section in which the term is defined. The list of these terms would be 
    included in an introductory note (Note 1) immediately following the 
    heading ``Definitions'', and would be updated, as follows:
        Two terms would be deleted from the list in Note 1 (``first 
    priority children'' (Sec. 300.320(a)), and ``second priority children'' 
    (Sec. 300.320(b)). Statutory provisions regarding priorities in the use 
    of funds were deleted by the IDEA Amendments of 1997.
        The term ``individualized education program'' (or ``IEP'') that 
    appears in the list in Note 1 of the existing regulations, would be 
    moved to proposed Sec. 300.14, and would be defined along with the 
    other terms of general applicability that are included under Subpart A.
        Several terms that were added by the IDEA Amendments of 1997, but 
    are not terms of general applicability, would be added to the list in 
    Note 1. Following is a list showing each new term and the statutory and 
    regulatory citations for that term:
         Base year (Relates to the new funding formula) (Section 
    611(e)(2)(A); Sec. 300.707).
         Controlled substance (Relates to the discipline 
    provisions) (Section 615(k)(10)(A); Sec. 300.520).
         Excess costs (The term was defined in prior law, but the 
    statutory definition was not included in the current regulations. The 
    definition of the term, as updated by the IDEA Amendments of 1997, 
    would be incorporated into these regulations (Section 602(7); 
    Sec. 300.284).
         Freely associated States (Relates to the Pacific Basin 
    entities that are eligible for assistance under this part) (Section 
    611(b)(6); Sec. 300.722).
         Indian; Indian Tribe (Relates to the eligibility of the 
    Secretary of the Interior to receive amounts under this part) (Sections 
    602(9) and 602(10); Sec. 300.264).
         Outlying area (Relates to grant requirements under this 
    part) (Section 602.18; Sec. 300.718).
         Substantial evidence (Relates to discipline provisions) 
    (Section 615(k)(10)(C); Sec. 300.521).
         Weapon (Relates to discipline provisions) (Section 
    615(k)(10)(D); Sec. 300.520).
        The following terms are not defined in the Act, but the Secretary 
    proposes to add them to the list in Note 1 in order to provide 
    additional clarification to certain provisions that would be added:
         Comparable in quality (A definition of this term would be 
    added to Sec. 300.455 to clarify what services must be provided by an 
    LEA to children with disabilities who are enrolled by their parents in 
    religiously affiliated or other private schools).
         Extended school year services (A definition of this term 
    would be added to a new provision under proposed Sec. 300.309 that 
    would require each public agency to consider extended school year 
    services on a case by case basis in ensuring that a free appropriate 
    public education (FAPE) is available to each child with a disability. 
    The definition would clarify that the meaning of the term ``extended 
    school year services'' applies to providing services during the summer 
    months. (A description of this provision is included under Subpart C, 
    Sec. 300.309, in this preamble).
         Meetings (A definition of this term would be added to 
    Sec. 300.501, relating to participation of parents in meetings about 
    their child on matters covered under this part).
         Financial Costs (A definition of this term is included in 
    proposed Sec. 300.142(e) on use of private insurance proceeds).
        A second note (Note 2) following the heading ``Definitions'' would 
    maintain the note from the current regulations that lists abbreviations 
    of certain terms that would be used throughout the regulations, but 
    would update that list, as follows: The terms ``Comprehensive system of 
    personnel development'' (``CSPD'') and ``individualized family service 
    plan'' (``IFSP'') would be added; and, consistent with a statutory 
    change (section 602(4)), the term ``educational service agency'' 
    (``ESA'') would replace the term ``intermediate educational unit'' 
    (``IEU'').
        Proposed Sec. 300.4 (Definition of ``Act'') would delete the 
    obsolete reference to the Education of the Handicapped Act from the 
    current regulatory definition of this term.
        Proposed Secs. 300.5 and 300.6 (Definitions of ``assistive 
    technology device'' and ``assistive technology service'') would retain 
    the current regulatory definitions of those terms, with the exception 
    of a minor technical change for consistency in using the singular 
    ``child with a disability.'' The note following the definitions of 
    those terms in the existing regulations (that states that the 
    definitions are substantively identical to the definitions of those 
    terms used in the Technology-Related Assistance for Individuals with 
    Disabilities Act of 1988) would be retained in abbreviated form.
    
    [[Page 55031]]
    
        Proposed Sec. 300.7 would make the following changes to the current 
    regulatory definition of ``children with disabilities'': The term would 
    be restated in the singular (``Child with a disability''), and the 
    definition itself would also be restated in singular rather than plural 
    terms. This change is made because it more appropriately comports with 
    the individualized focus of Part B of the Act. Paragraph (a)(1) of this 
    section would be revised, consistent with section 602(3)(A)(i) of the 
    Act, to clarify that the term ``serious emotional disturbance'' will 
    hereinafter be referred to as ``emotional disturbance''. A 
    corresponding change would be made in the definitions of the individual 
    disability categories under proposed paragraph (b), by changing the 
    term ``serious emotional disturbance'' to ``emotional disturbance'' and 
    moving the definition of that term from paragraph (b)(9) to paragraph 
    (b)(4).
        Consistent with section 602(3)(B) of the Act, proposed 
    Sec. 300.7(a)(2) (relating to a State's discretion to use the term 
    ``developmental delay'' for children aged 3 through 5) would be 
    revised, as follows: The age range for using that term would be 
    extended from ages 3 through 5 to ages 3 through 9; and the decision to 
    use the term ``developmental delay'' would be at the discretion of both 
    the State and the local educational agency (LEA). The State's 
    definition of the category may be different under Parts B and H (to 
    become Part C on July 1, 1998).
        Note 1 following Sec. 300.7 of the current regulations (relating to 
    children with autism) would be added without change to proposed 
    Sec. 300.7, and four new notes would be added to that section, as 
    follows:
        Note 2 would address the statutory change under paragraph (a)(2) of 
    this section relating to use of the term ``developmental delay''. The 
    note would clarify that (1) if a State adopts the term for children 
    aged 3 through 9, or a subset of that age range, LEAs that elect to use 
    the term must conform to the State's definition; (2) LEAs could not 
    otherwise use ``developmental delay'' as a basis for establishing a 
    child's eligibility under this part; and (3) even if a State adopts the 
    term, the State may not require an LEA to use it. This clarification is 
    necessary to avoid confusion and potential compliance problems in 
    implementing this new statutory provision, and to otherwise facilitate 
    its implementation.
        Note 3 would further address the use of the term ``developmental 
    delay'' by including a statement from the House Committee Report that 
    emphasizes the value of using ``developmental delay'' in establishing 
    eligibility for young children in order to prevent locking the child 
    into an eligibility category that may be inappropriate or incorrect 
    during a period when it is often difficult to determine the precise 
    nature of the disability.
        Note 4 would describe congressional intent in changing the term 
    ``serious emotional disturbance'' to ``emotional disturbance''. The 
    note would include a statement from the House Committee Report that 
    explains that the statutory change (1) is intended to have no 
    substantive or legal significance, and (2) is intended strictly to 
    eliminate the pejorative connotation of the term ``serious.'' The 
    Report further makes clear that this statutory revision does not change 
    the meaning of the definition of ``serious emotional disturbance'' that 
    is included in the existing regulations for this part.
        Note 5 would address the conditions under which a child with 
    attention deficit disorder (ADD) or attention deficit hyperactivity 
    disorder (ADHD) is eligible under Part B of the Act. The note clarifies 
    that some children with ADD or ADHD who are eligible under this part 
    meet the criteria for ``other health impairments'' if (1) the ADD or 
    ADHD is determined to be a chronic health problem that results in 
    limited alertness that adversely affects educational performance, and 
    (2) special education and related services are needed because of the 
    ADD or ADHD. (The note clarifies that the term ``limited alertness'' 
    includes a child's heightened alertness to environmental stimuli that 
    results in limited alertness with respect to the educational 
    environment.)
        The note further clarifies that (1) some children with ADD or ADHD 
    may be eligible for services under other disability categories in 
    Sec. 300.7(b) if they meet the applicable criteria for those 
    disabilities, and (2) if those children are not eligible under this 
    part, the requirements of section 504 of the Rehabilitation Act of 1973 
    and its implementing regulations may still be applicable.
        Proposed Sec. 300.8 would add a definition of ``day'' to clarify 
    that unless otherwise indicated, the term ``day'' means calendar day. 
    Although the Department has traditionally interpreted ``day'' to mean 
    calendar day, the term has never been defined in the regulations. It is 
    important to include such a definition in these proposed regulations 
    because under the new statutory provisions added by the IDEA Amendments 
    of 1997, the term is applied differently under certain provisions, 
    including the use of ``school days''; ``business days''; and ``business 
    days (including any holidays that fall on business days).''
        Proposed Sec. 300.9 would add the definition of ``educational 
    service agency'' that appears in section 602(4) of the Act. That term 
    was added by the IDEA Amendments of 1997 to replace the term 
    ``intermediate educational unit'' that was used in prior law and in the 
    current regulations.
        Proposed Sec. 300.10 would add the definition of ``equipment'' that 
    appears in section 602(6) of the Act. That definition is substantively 
    identical to the definition of ``equipment'' in prior law. However, 
    that definition is not included in the current regulations. The 
    Secretary believes that, for the regulations to be most useful to 
    parents, school officials, and members of the general public, the 
    regulations should contain all applicable statutory provisions in one 
    document, rather than simply referencing definitions or other 
    provisions that are contained in other regulations. With very few 
    exceptions, these proposed regulations have been developed to include 
    all applicable provisions of the Act.
        Proposed Sec. 300.11 would incorporate the existing regulatory 
    definition of the term ``free appropriate public education,'' except 
    that the reference to the IEP requirements in paragraph (d) of that 
    section would change from Secs. 300.340-300.350 to Secs. 300.340-
    300.351, to conform to a proposed change made in those requirements.
        The Secretary proposes to add in proposed Sec. 300.12 a definition 
    of ``general curriculum'' to clarify that, for purposes of this part, 
    there is a single curriculum that applies to all children within the 
    jurisdiction of the public agency, including nondisabled children and 
    children with disabilities. The purpose of adding this definition is to 
    eliminate (or significantly reduce) the possibility of misinterpreting 
    the new requirements in the Act relating to the participation of 
    children with disabilities in the general curriculum. Some commenters 
    on the June 27, 1997 Federal Register notice have expressed concern 
    that a public agency could assume that there is a ``general 
    curriculum'' for nondisabled and another ``general curriculum'' for 
    certain categories of children with disabilities. If the requirements 
    of this part were implemented based on that assumption this would 
    seriously limit the possibility of accomplishing the purposes of Part B 
    of the Act that are set out in the IDEA Amendments of 1997.
        A note would be added following this section to clarify that the 
    term ``general curriculum'' relates to the content of the
    
    [[Page 55032]]
    
    curriculum and not to the setting in which it is used. The note further 
    clarifies that the general curriculum could be used in any educational 
    setting along a continuum of alternative placements, as long as the 
    setting is consistent with the least restrictive environment provisions 
    of Sec. 300.550-300.553 and is applicable to an individual child with a 
    disability. A number of comments were received requesting clarification 
    relating to this matter.
        Proposed Sec. 300.13 would retain the current regulatory definition 
    of the term ``include''.
        Proposed Sec. 300.14 would include a definition of the term 
    ``individualized education program'' (IEP). Because the term ``IEP'' 
    has traditionally been defined under Sec. 300.340 (an introductory 
    section to the IEP requirements of Secs. 300.340-300.350) the 
    definition in proposed Sec. 300.14 would simply reference the 
    definition in Sec. 300.340.
        Proposed Sec. 300.15 would add a definition of ``individualized 
    education program team'' (or ``IEP team''). The definition states that 
    the term ``IEP team'' means a group of individuals described in 
    Sec. 300.344 that is responsible for developing, reviewing and revising 
    an IEP for a child with a disability. Because the term ``IEP team'' is 
    used throughout these regulations, it is important to include a 
    definition of that term in Subpart A. However, to preserve the 
    structural integrity of the current regulatory provisions on IEPs in 
    Secs. 300.340-300.350, the substantive definition of ``IEP team'', 
    which conforms to the statutory definition under section 614(d)(1)(B), 
    would be included in Sec. 300.344.
        Proposed Sec. 300.16 would add a definition of ``individualized 
    family service plan'' (or ``IFSP''), because that term is used in 
    several subparts within these regulations. The definition of the term 
    would be a reference to 34 CFR 303.340(b).
        Proposed Sec. 300.17 would incorporate the statutory definition of 
    ``local education agency'' from section 602(15) of the Act. This 
    definition, which updates the prior statutory definition of ``LEA'' to 
    conform to the definition of that term in the Improving America's 
    Schools Act, would replace the current regulatory definition of 
    ``LEA.''
        A note would be added following proposed Sec. 300.17 to clarify 
    that a public charter school is eligible to receive funds under Part B 
    of the Act if it meets the definition of ``LEA.'' The note further 
    clarifies that if a public charter school receives Part B funds it must 
    comply with the requirements that apply to LEAs. Because of the 
    widespread interest in establishing charter schools as a major part of 
    educational reform, this clarification is necessary in order to ensure 
    that, to the extent applicable, these schools are in full compliance 
    with the requirements of this part.
        Proposed Sec. 300.18 would incorporate the statutory definition of 
    ``native language'' from section 602(16) of the Act. The new definition 
    is substantively similar to the current regulatory definition of 
    ``native language.'' The note following the current regulatory 
    definition of ``native language'' would be retained, unchanged, except 
    for clarifying that the term ``native language'' is also used in the 
    procedural safeguards notice under proposed Sec. 300.504(c). (The 
    procedural safeguards notice is a new statutory provision that was 
    added by section 614(d) of the Act.)
        Proposed Sec. 300.19 would incorporate the current regulatory 
    definition of ``parent'' (under a new paragraph (a)). A proposed new 
    paragraph (b) would be added to address questions raised by public 
    agencies and other agencies representing children with disabilities 
    about whether foster parents, who have a long-term relationship with a 
    disabled child, could serve as the child's parent, in lieu of requiring 
    the appointment of a surrogate parent to represent the child.
        Proposed paragraph (b) of this section would permit State law to 
    provide that a foster parent qualifies as a parent under Part B of the 
    Act if the natural parents' authority to make educational decisions on 
    the child's behalf has been extinguished under State law, and if the 
    foster parent (1) has an ongoing, long-term parental relationship with 
    the child; (2) is willing to participate in making educational 
    decisions in the child's behalf; and (3) has no interest that would 
    conflict with the interest of the child.
        The note following the current regulatory definition of ``parent'' 
    (relating to other persons, such as a grandparent, who may act as a 
    parent) would also be incorporated into these proposed regulations. The 
    note would be revised to add conforming language about a foster parent, 
    as described in paragraph (b) of this section.
        Proposed Sec. 300.20 would retain the current regulatory definition 
    of ``public agency,'' but would revise that definition to replace the 
    term ``IEUs'' with the term ``ESAs.''
        Proposed Sec. 300.21 would incorporate without change the current 
    regulatory definition of the term ``qualified.''
        Proposed Sec. 300.22 would retain the current regulatory definition 
    of ``related services,'' except for making the following changes: In 
    proposed paragraph (a), the term ``speech pathology and audiology'' 
    would be replaced by the term ``speech-language pathology and audiology 
    services,'' and the term ``orientation and mobility services'' would be 
    added to the list of related services. These changes would be made to 
    conform to a statutory change in section 602(22) of the Act.
        Proposed Sec. 300.22(b) would be amended to add a definition of the 
    term ``orientation and mobility services'' identified in paragraph (a) 
    of this section. The definition (included as a new paragraph (b)(6)) 
    states that the term ``orientation and mobility services'' means 
    services provided to blind or visually impaired students by qualified 
    personnel to enable those students to attain systematic orientation to 
    and safe movement within their environments in school, home and 
    community.
        In proposed Sec. 300.22(b)(9) (relating to psychological services) 
    and (b)(13) (relating to social work services in schools) the 
    definitions of those terms would be amended to add a reference to 
    assisting in developing positive behavioral intervention strategies to 
    the list of functions performed by these related services providers. 
    These providers could be helpful in ensuring effective implementation 
    of the new statutory provision in section 614(d)(3)(B) (proposed 
    Sec. 300.346) that requires that the IEP team, in the case of a child 
    whose behavior impedes his or her learning or that of others, consider, 
    when appropriate, strategies, including positive behavioral 
    interventions.
        In proposed Sec. 300.22(b)(14), the current regulatory definition 
    of the term ``speech-pathology'' would be retained, but the term would 
    be changed to ``speech-language pathology services,'' to conform to the 
    statutory change identified in paragraph (a) of this section.
        The note following the current regulatory definition of ``related 
    services'' would be retained as Note 1 following proposed Sec. 300.22, 
    except for the following changes: The list of other related services in 
    the first paragraph of that note would be amended (1) by adding other 
    important services, including travel training, nutrition services, and 
    independent living services, and (2) to clarify that the services would 
    be provided if necessary for the child to receive FAPE.
        Several notes would also be added to proposed Sec. 300.22, as 
    follows:
        Note 2 would acknowledge the critical importance of orientation and 
    mobility services for children who are blind or have visual 
    impairments, and
    
    [[Page 55033]]
    
    point out that there are children with other disabilities who may also 
    need to be taught the skills they need to navigate their environments 
    (e.g., travel-training). The note includes a statement from the House 
    Committee report on Pub. L. 105-17 that emphasizes the importance of 
    travel training for certain children with disabilities.
        Note 3 would clarify that, with respect to various related services 
    defined in this section, nothing would prohibit the use of 
    paraprofessionals to assist in the provision of those services if doing 
    so is consistent with the personnel standards requirements of proposed 
    Sec. 300.136(f).
        Note 4 would explain that (1) most children with disabilities 
    should receive the same transportation services as non-disabled 
    children, and (2) for some disabled children, integrated transportation 
    may be achieved by providing needed accommodations such as lifts and 
    other adaptations on regular school transportation vehicles.
        Proposed Sec. 300.23 would incorporate the statutory definition of 
    ``secondary school'' from section 602(23) of the Act. This definition 
    updates the prior statutory definition of ``secondary school'' to 
    conform to the definition of that term in the Improving America's 
    Schools Act. The term ``secondary school'' is not defined in the 
    current regulations.
        Proposed Sec. 300.24 would retain the current regulatory definition 
    of ``special education,'' except for the following changes:
        In Sec. 300.24(a)(2), the term ``speech pathology'' would be 
    changed to ``speech-language pathology services,'' to conform to the 
    terms used in section 602(22) of the Act.
        Under a new Sec. 300.24(b)(3), a definition of ``specially designed 
    instruction'' would be added to clarify that the term means adapting 
    the content, methodology, or delivery of instruction to (1) address the 
    unique needs of an eligible child under this part that result from the 
    child's disability, and (2) ensure access of the child to the general 
    curriculum, so that he or she can meet the educational standards within 
    the jurisdiction of the public agency that apply to all children. 
    Although the term is a key component in the definition of ``special 
    education'' in both prior law and the current Act, it has never been 
    defined. With the shift in emphasis of the Part B program toward 
    greater participation of children with disabilities in the general 
    curriculum, this definition should facilitate implementation of the 
    program.
        Proposed Sec. 300.24(b)(4) would replace the outdated definition of 
    ``vocational education'' in the current regulations with a new 
    definition that states that the term ``vocational education'' means 
    organized educational programs that are directly related to the 
    preparation of individuals for paid or unpaid employment, or for 
    additional preparation for a career requiring other than a 
    baccalaureate or advanced degree.
        The note following the definition of ``special education'' in the 
    current regulations would be retained under proposed Sec. 300.24, but 
    would be revised to clarify that a related services provider may be a 
    provider of specially designed instruction if, under State law, the 
    person is qualified to provide that instruction.
        Proposed Sec. 300.25 would incorporate the statutory definition of 
    ``State'' from section 602(27) of the Act to mean each of the 50 
    States, the District of Columbia, the Commonwealth of Puerto Rico, and 
    each of the outlying areas. This definition updates the prior statutory 
    definition of ``State.'' The term is not defined in the current 
    regulations.
        Proposed Sec. 300.26 would incorporate the definition of 
    ``supplementary aids and services'' from section 602(29) of the Act. 
    Although the term was included in prior law, it was not defined until 
    the enactment of the IDEA Amendments of 1997. The term is defined as 
    aids, services, and other supports that are provided in regular 
    education classes or other education-related settings to enable 
    children with disabilities to be educated with nondisabled children to 
    the maximum extent appropriate in accordance with the LRE provisions in 
    Secs. 300.550-300.556.
        Proposed Sec. 300.27 would retain the current regulatory definition 
    of ``transition services,'' except for the following changes: The 
    organizational structure of the definition has been changed to conform 
    to the definition of the term in section 602(30) of the Act. The new 
    definition simply describes what the term means, but does not attempt 
    to regulate under the definition. The current regulatory definition 
    uses the regulatory term ``must'' in defining what services must be 
    provided. Consistent with the new statutory definition, the term 
    ``related services'' is added as one of the services or activities 
    covered by the term.
        Proposed Sec. 300.28 would add a list of terms found in the part B 
    regulations that are defined in the Education Department General 
    Administrative Regulations (EDGAR).
    
    Subpart B--State and Local Eligibility
    
    State Eligibility--General
        Under the prior statute, States were required both to meet certain 
    eligibility requirements and to submit State plans to the Department, 
    and were subject to periodic resubmission requirements. The newly 
    revised Act replaces that scheme with an eligibility determination 
    based on a demonstration satisfactory to the Secretary that the State 
    has in effect policies and procedures to ensure that it meets each of a 
    list of conditions. (Section 612(a)). A State that already has on file 
    with the Secretary policies and procedures demonstrating that it meets 
    any of these requirements will be considered to have met that 
    requirement for the purpose of receiving a grant under Part B of the 
    Act. (Section 612(c)(1)). A technical change will be made to Part 76 
    with the publication of the final regulations to reflect the 
    substitution of this demonstration of State eligibility for State 
    plans.
        Under section 612(c) (2) and (3), the policies and procedures 
    submitted by a State remain in effect until a State submits 
    modifications that the State decides are necessary or until the 
    Secretary requires modifications based on changes to the Act or its 
    implementing regulations, new interpretations by a Federal court or the 
    State's highest court, or an official finding of noncompliance with 
    Federal law or regulations. The provisions regarding State eligibility 
    apply to modifications in the same manner and to the same extent as 
    they do to a State's original policies and procedures.
        Section 612(d) specifies that if the Secretary determines that a 
    State is eligible to receive a grant under Part B of the Act, the 
    Secretary notifies the State of that determination, and that the 
    Secretary shall not make a final determination that a State is not 
    eligible until providing the State reasonable notice and an opportunity 
    for a hearing. These provisions are incorporated in the proposed 
    regulations in Secs. 300.110-300.113.
    State Eligibility--Specific Conditions
        The statutory eligibility conditions that must be addressed by each 
    State in order to receive a grant under Part B of the Act are contained 
    in proposed Secs. 300.121-300.156. The IDEA Amendments of 1997 made a 
    number of changes to the eligibility conditions and State plan 
    requirements previously contained in the Act. These proposed 
    regulations incorporate these statutory changes, with appropriate 
    modifications described below, into the regulations
    
    [[Page 55034]]
    
    regarding State plan contents. Some changes of a technical nature have 
    been made to preexisting regulatory provisions in order to reflect the 
    fact that States now demonstrate eligibility, rather than submit State 
    plans, as was the case under the prior law. In addition, some 
    reordering and reorganization of current regulatory provisions is done 
    for the sake of coherence.
        Proposed Sec. 300.121 would add to the current Sec. 300.121 the new 
    statutory provision, under section 612(a)(1)(A), that the right to a 
    free appropriate public education (FAPE) extends to children with 
    disabilities who have been suspended or expelled from school. The issue 
    of what the right to FAPE means for children who have been suspended or 
    expelled from school has been the subject of numerous comments to the 
    Department in response to the June 27, 1997 notice, many of which raise 
    this issue in the context of lengthy discussions about all of the 
    provisions in the Act concerning discipline for children with 
    disabilities. Proposed Sec. 300.121(c) reflects the Secretary's 
    interpretation that the IDEA Amendments of 1997 take a balanced 
    approach to the issue of discipline for students with disabilities that 
    reflect both the need to protect the rights of children with 
    disabilities to appropriate educational services and the need of 
    schools to be able to ensure that all children, including children with 
    disabilities, have safe schools and orderly learning environments. The 
    positions taken in these proposed regulations on the issue of continued 
    services for children with disabilities who have been properly 
    suspended or expelled and on the other disciplinary provisions of the 
    Act (see proposed Secs. 300.520-300.529) reflect this need for a 
    balanced, fair interpretation of these new statutory provisions.
        With regard to the issue of the provision of FAPE for children with 
    disabilities who have been suspended or expelled, the Secretary 
    believes that the statute struck a balance between the longstanding 
    interpretation of the Department that schools are not required by the 
    Act to provide services to children with disabilities who are suspended 
    for ten school days or less, and the desire to ensure that children 
    with disabilities not be removed from education for prolonged amounts 
    of time in any school year.
        In proposed Sec. 300.121(c)(1), the Secretary proposes to define 
    children with disabilities who have been suspended or expelled from 
    school for purposes of this section to mean children with disabilities 
    who have been removed from their current educational placement for more 
    than 10 school days in a given school year.
        In proposed Sec. 300.121(c)(2), the Secretary proposes to clarify 
    that the right to FAPE under these circumstances begins on the eleventh 
    school day from the date of the child's removal from the current 
    educational placement. For example, if a child with a disability who 
    has not previously been suspended in the school year receives a three 
    week suspension, services must be provided by the eleventh school day 
    of that suspension. If a child with a disability who has received two 
    five school day suspensions in the fall term is suspended again in the 
    spring of that school year, services must be provided from the first 
    day of the third suspension.
        A second issue regarding the statutory right to FAPE for children 
    with disabilities who have been suspended or expelled is how to 
    reconcile the right to FAPE with the statutory recognition, in sections 
    612(a)(1)(A) and 615(k)(5)(A), that children with disabilities properly 
    could be subjected to the same disciplinary measures applied to 
    nondisabled children if their behavior was not a manifestation of their 
    disability. The Secretary proposes in Sec. 300.121(c)(2) to address 
    this question by requiring that in providing FAPE to children with 
    disabilities who have been suspended or expelled, a public agency shall 
    meet the requirements for interim alternative educational settings 
    under section 615(k)(3) of the Act. The Secretary believes requiring 
    that education for children who have been suspended or expelled meets 
    the standards in section 615(k)(3) allows accommodation of both the 
    statutory obligation to provide FAPE to these children and recognizes 
    in section 615(k)(5) that, through an appropriate suspension or 
    expulsion, school districts can legitimately remove children from their 
    current educational placement. Under proposed Sec. 300.622, States may 
    elect to use funds available for capacity building and improvement 
    activities to support public agency services to children who have been 
    suspended or expelled.
        Two notes would also be added to proposed Sec. 300.121. The first 
    would be added to reflect the Department's longstanding interpretative 
    position that the obligation to make FAPE available to children 3 
    through 21 begins on each child's third birthday, and an IEP or IFSP 
    must be in effect by that date that specifies the special education and 
    related services that must be provided, consistent with proposed 
    Sec. 300.342, including extended school year services, if appropriate. 
    For children receiving early intervention services under Part C of the 
    Act and who will be participating in a preschool program under Part B 
    of the Act, the transition requirements of proposed Sec. 300.132 would 
    apply.
        The second note to follow proposed Sec. 300.121 would recognize 
    that, under the statute, school districts are not relieved of their 
    obligations to provide appropriate special education and related 
    services to individual disabled students who need them even though the 
    students are advancing grade to grade, and that decisions about 
    eligibility under Part B of the Act for these students must be 
    determined on an individual basis.
        Proposed Sec. 300.122 revises the current Sec. 300.122 to eliminate 
    an obsolete provision about the provision of FAPE to children with 
    disabilities before September 1, 1980, and incorporates the new 
    statutory limitation to the obligation to make FAPE available to 
    certain individuals in adult correctional facilities. Section 
    612(a)(1)(B)(ii) provides that the obligation to make FAPE available to 
    all children with disabilities does not apply to individuals aged 18 
    through 21 to the extent that State law does not require that special 
    education and related services under Part B of the Act be provided to 
    students with disabilities who, in the educational placement prior to 
    their incarceration in an adult correctional facility, were not 
    actually identified as being a child with a disability or did not have 
    an IEP under Part B of the Act. This provision, with minor 
    modifications for clarity, would be reflected in proposed 
    Sec. 300.122(a)(2). A note, Note 2, would be added following 
    Sec. 300.122 quoting the House Committee Report explaining the 
    statutory change.
        The Secretary also proposes to amend Sec. 300.122 to make clear 
    that the right to FAPE does not apply to children with disabilities who 
    have graduated from high school with a regular high school diploma. 
    This reflects the Secretary's understanding that the right to FAPE is 
    ended either by a student successfully finishing a regular secondary 
    education program or reaching an age between 18 and 21 at which, under 
    State law, the right to FAPE has ended. In addition, the changes made 
    by the IDEA Amendments of 1997, particularly as they relate to the 
    content of children's IEPs in section 614(d) of the Act, reinforce the 
    Secretary's belief that FAPE is closely related to enabling children 
    with disabilities to progress in the same general curriculum that is 
    provided nondisabled children. The Secretary also believes that it is
    
    [[Page 55035]]
    
    important to clarify that the right to FAPE is not ended if a student 
    with disabilities is awarded some other certificate of completion or 
    attendance instead of a regular high school diploma. This change should 
    not be interpreted as prohibiting the use of Part B funds to provide 
    services to a student with disabilities who has already achieved a 
    regular high school diploma, but who still is in the State's mandated 
    age range if an LEA or SEA wishes to do so.
        Note 1 following proposed Sec. 300.122 would explain that 
    graduation is a change of placement under Part B and, as such, would 
    require prior written notice to the parents, and student if 
    appropriate. The note would also explain that under Sec. 300.534(c) a 
    reevaluation is required before graduation. The note would further 
    explain that other documents, such as certificates of attendance or 
    other certificates granted instead of a regular high school diploma, 
    would not end a student's entitlement to FAPE.
        Proposed Secs. 300.123-300.124 include, with only minor changes 
    reflecting the new State eligibility scheme of the statute, the current 
    regulatory provisions concerning State policies and procedures relating 
    to the full educational opportunity goal and the full educational 
    opportunity timetable. Current regulatory provisions concerning the 
    full educational opportunity goal regarding facilities, personnel, and 
    services, and priorities would be eliminated as these provisions were 
    removed from the statute by the IDEA Amendments Act of 1997. Section 
    612(a)(2) of the Act requires each State to have established a full 
    educational opportunity goal and timetable.
        Proposed Sec. 300.125 incorporates the current regulatory 
    provision, revised as discussed, concerning child find obligations 
    (identification, location, and evaluation of children with 
    disabilities) with the new statutory provision that this obligation 
    includes children with disabilities attending private schools, in 
    accordance with section 612(a)(3)(A) of the Act. The requirement in the 
    current regulation to provide yearly information about child find 
    activities would be eliminated in light of the fact that periodic State 
    plans are no longer required by statute. The provisions requiring data 
    on and the method for determining which children are not receiving 
    special education and related services also would be removed from the 
    regulation, reflecting statutory changes. A new Sec. 300.125(c) would 
    be added that includes the construction clause of section 612(a)(3)(B). 
    That clause clarifies that nothing in the Act requires that children be 
    classified by their disability so long as each child who has a 
    disability and, by reason thereof, needs special education and related 
    services, is regarded as a child with a disability under Part B of the 
    Act. The notes following the current regulatory provision regarding 
    child find would be retained, but shortened and updated as appropriate. 
    Two additional notes would be added to reflect longstanding policy 
    positions of the Department. A new Note 2 would recognize that the 
    services and placement needed by each child with a disability must be 
    based on the child's unique needs and may not be determined or limited 
    based on the child's disability category.
        Note 3, which is largely retained from the current regulations, 
    explains the important relationship between child find activities under 
    this part and child find activities under Part 303 for children with 
    disabilities from birth through age 2. The Secretary believes that 
    developing effective child find activities for this age population will 
    provide significant benefits not just for very young children with 
    disabilities but also for schools and other public agencies that may 
    find their responsibilities easier because of early attention to these 
    children's needs.
        A Note 4 following this section would reflect that each State's 
    child find obligation under the statute includes highly mobile 
    children, such as migrant and homeless children.
        Proposed Sec. 300.126 incorporates the evaluation procedures from 
    sections 612(a)(7) and 612(a)(6)(B), by cross-referencing the 
    provisions of proposed Secs. 300.530-300.536, which include all of the 
    statutory evaluation provisions of sections 612(a)(6)(B) and 614(a)-(c) 
    and related evaluation procedures from current regulations. This 
    provision would replace the current regulatory section on State 
    procedures on protection in evaluation procedures.
        Proposed Sec. 300.127 includes, with only minor changes reflecting 
    the new statutory State eligibility scheme, the provisions of the 
    current regulation concerning State policies and procedures on the 
    confidentiality of personally identifiable information. This provision 
    reflects section 612(a)(8) of the Act. The note following this section 
    would be updated to reflect current information about the regulations 
    implementing the Family Educational Rights and Privacy Act.
        Proposed Sec. 300.128 is the same as the current regulatory 
    provision concerning individualized education programs (IEPs), except 
    as revised to reflect the new statutory State eligibility scheme and 
    the requirements of section 612(a)(4) of the Act.
        Proposed Sec. 300.129 incorporates the current regulatory provision 
    concerning procedural safeguards, as revised as discussed, and the 
    statutory provision, in section 612(a)(6)(A), that children and their 
    parents are afforded the procedural safeguards required by section 615.
        Proposed Sec. 300.130 would remove from the existing regulatory 
    provision regarding least restrictive environment (LRE) the data 
    collection requirements, and make other conforming revisions, as 
    discussed, in light of the new State eligibility structure of the Act, 
    consistent with section 612(a)(5)(A). (Data on LRE would still be 
    collected under section 618(a)(1)(A) (iii) and (iv) of the Act.) 
    Additionally, the following new statutory requirements regarding a 
    State's funding formula are added as proposed Sec. 300.130(b): (1) If a 
    State uses a funding mechanism to distribute State funds on the basis 
    of the type of setting in which a child is served, the funding 
    mechanism may not result in placements that violate the LRE 
    requirements; and (2) if the State does not have policies and 
    procedures to ensure compliance with this new requirement, the State 
    must provide the Secretary an assurance that the State will revise the 
    funding mechanism as soon as feasible to ensure that the mechanism does 
    not result in placements that violate LRE. A note would also be added 
    to this provision quoting language from the House Committee Report 
    recognizing that this statutory addition does not eliminate the need 
    for a continuum of alternative placements that is designed to meet the 
    unique needs of each child with a disability.
        Proposed Sec. 300.132 adds to the existing regulatory provision 
    concerning the transition of individuals from Part H (to be renamed 
    part C on July 1, 1998) to Part B the new statutory language (from 
    section 612(a)(9)) concerning ``effective'' transitions, and the 
    provision that LEAs will participate in transition planning conferences 
    arranged by the designated lead agency under Part H (to be renamed Part 
    C).
        Proposed Sec. 300.133 updates the existing regulatory provision 
    concerning children in private schools to reflect the new statutory 
    structure, and the changes made in subpart D of this proposed 
    regulation, consistent with section 612(a)(10) of the Act.
        Proposed Sec. 300.135 reflects the new statutory requirements 
    concerning a comprehensive system of personnel development (CSPD). 
    Section 612(a)(14)
    
    [[Page 55036]]
    
    provides that a State's CSPD must meet the requirements for a State 
    improvement plan relating to personnel development. A note following 
    this section would quote the House Committee Report to the effect that 
    the State's CSPD must include procedures for acquiring and 
    disseminating significant knowledge and for adopting appropriate 
    promising practices, materials, and technology. The note would also 
    explain that a State could use the information provided to meet the 
    State eligibility requirement under Part B of the Act as a part of a 
    State improvement program plan under Part D of the Act.
        Proposed Sec. 300.136 reflects the existing regulatory provision on 
    personnel standards, revised as discussed, and the requirements of 
    section 612(a)(15) of the Act. A new paragraph (f) adds the new 
    statutory provision from section 612(a)(15)(B)(iii) that allows 
    paraprofessionals and assistants who are appropriately trained and 
    supervised, under State law, regulations or policy to be used to assist 
    in the provision of services under Part B of the Act. Also added is the 
    new provision, from section 612(a)(15)(C), that a State may adopt a 
    policy that includes a requirement that LEAs in the State make an 
    ongoing good-faith effort to recruit and hire appropriately and 
    adequately trained personnel to provide special education and related 
    services, including, in a geographic area where there is a shortage of 
    those personnel, the most qualified individuals available who are 
    making satisfactory progress toward completing applicable course work 
    necessary to meeting State standards within three years. This provision 
    would be incorporated in Sec. 300.136(g). A note following this section 
    would be added explaining that a State may exercise the option in 
    paragraph (g) even though the State has reached its established date 
    for retraining or hiring of personnel to meet appropriate professional 
    requirements under paragraph (c) of this section so as to avoid any 
    unwarranted confusion on this issue. Another note would be added to 
    clarify that if a State has only one entry level degree requirement for 
    a specific profession or discipline, it is not precluded by 
    Sec. 300.136(b)(1) from modifying that standard if necessary to ensure 
    the provision of FAPE to all children with disabilities in the State.
        Proposed Sec. 300.137 would add to the regulation the new statutory 
    provision of section 612(a)(16) concerning performance goals and 
    indicators. Basically, this provision requires that States have goals 
    for the performance of children with disabilities, and indicators of 
    progress that at a minimum address the performance of children with 
    disabilities on assessments, drop-out rates, and graduation rates. The 
    provision also requires reporting every two years to the Secretary and 
    the public on the progress of the State, and revisions to a State's 
    improvement plan under Part D of the Act as needed to improve 
    performance, if the State receives a grant under that authority. The 
    current regulatory provision concerning procedures for evaluation of 
    the effectiveness of programs would be removed, reflecting a statutory 
    change.
        Proposed Sec. 300.138 would add the new requirement of section 
    612(a)(17)(A) concerning inclusion of children with disabilities in 
    general State and district-wide assessments, including conducting 
    alternative assessments not later than July 1, 2000 for children who 
    cannot participate in State and district-wide assessment programs. A 
    note following this section would explain that only a small number of 
    children with disabilities should need alternative assessments. The 
    provision of section 612(a)(17)(B) concerning reports related to these 
    assessments are contained in proposed Sec. 300.139.
        The Secretary proposes to interpret the statutory requirements to 
    make clear that whenever the SEA reports to the public on student 
    performance on wide-scale assessments, the reports must include 
    aggregated results of all children, including children with 
    disabilities, as well as disaggregated data on the performance of 
    children with disabilities. The Secretary believes that the IDEA 
    Amendments of 1997 were designed to foster consideration of children 
    with disabilities as a part of the student population as a whole. It 
    would not be in keeping with that focus if, in reporting assessment 
    data, results for children with disabilities were not included in 
    reports on the student population as a whole. A note following this 
    section would explain that States would not be precluded from also 
    reporting data in a way that would, for example, allow them to continue 
    trend analysis of student performance, if children with disabilities 
    had not been included in those analyses in the past.
        Proposed Sec. 300.141 incorporates the current regulatory 
    provision, revised as discussed, concerning SEA responsibility for all 
    educational programs, consistent with the requirement in section 
    612(a)(11) of the Act.
        Proposed Sec. 300.142 would replace the current regulatory 
    provision concerning interagency agreements with the requirements of 
    section 612(a)(12) regarding methods of ensuring services. This 
    provision requires that the Chief Executive Officer or designee in each 
    State ensure that an interagency agreement or some other mechanism for 
    interagency coordination is in effect between noneducational agencies 
    that are obligated under other law to provide or pay for services that 
    are considered special education or related services under Part B of 
    the Act and the SEA to ensure that those services are provided. In 
    addition to the statutory requirements, a paragraph (e) would reflect 
    the Department's interpretation that it would violate the statutory 
    obligation to provide free services if a public agency required a 
    parent to use private insurance proceeds to pay for services required 
    under the Act. The Department has long taken the position that Part B 
    of the Act and section 504 of the Rehabilitation Act prohibit a public 
    agency from requiring parents to use insurance proceeds to pay for the 
    services that must be provided to an eligible child under the FAPE 
    requirements of those statutes, if they would incur a financial cost to 
    secure those services. (See Notice of Interpretation published on 
    December 30, 1980 (45 FR 66390)). This paragraph also would include a 
    definition of the term ``financial cost,'' so that both parents and 
    school districts will have a common understanding of the term. This 
    definition reflects the Department's longstanding interpretation of the 
    statutory obligation to provide services at no cost as applied to 
    parents' private insurance. A note following this section would explain 
    how this paragraph applies if a family is covered by both private 
    insurance and Medicaid.
        The Secretary believes that the same basic principle, that services 
    be available at no cost to parents, would be equally applicable to 
    parents whose children are eligible for public insurance, but that 
    there is no current need to regulate on the public insurance issue 
    because there is no risk of financial loss to parents under current 
    public insurance programs such as Medicaid. The Secretary invites 
    comment on whether a policy on public insurance similar to the proposed 
    section regarding private insurance should be added to the final 
    regulation.
        The Secretary also proposes to add a new paragraph (f) to specify 
    that proceeds from public or private insurance may not be treated as 
    program income for purposes of 34 CFR 80.25. That section imposes 
    limitations on how program income can be treated by grantees that would 
    lead to States returning reimbursements from public and private 
    insurance to the Federal
    
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    government or requiring that the funds be used under this part, which 
    could discourage States and school districts from using all the 
    resources available in paying for these services. Given the current 
    small percentage that Federal funds under this part are to total 
    funding for services under this part, and the fact that children with 
    disabilities are guaranteed services under this part, the Secretary 
    believes that States and school districts should be given some 
    flexibility in how they use and account for funds received as 
    reimbursements from other sources. A note would be added after this 
    section explaining the consequences, under the Maintenance of Effort 
    (MOE) requirements, of various State and local choices in accounting 
    for these funds.
        Two other notes would also be added following proposed 
    Sec. 300.142. One would quote the House Committee Report relating to 
    the methods of insuring services provision. The other would explain 
    that if a public agency cannot get parent consent to use public or 
    private insurance for a service, the agency may use funds under Part B 
    of the Act for that service. In addition, the note would explain that 
    to avoid financial cost to parents who otherwise would consent to the 
    use of private insurance, the public agency may use funds under this 
    part to pay the costs of accessing the insurance, such as deductible or 
    co-pay amounts.
        Proposed Sec. 300.143 incorporates, with revisions as described, 
    the existing regulatory provision concerning State procedures for 
    informing each public agency of its responsibility for ensuring 
    effective implementation of procedural safeguards for the children with 
    disabilities served by that public agency.
        Proposed Sec. 300.144 would retain, with revisions as described, 
    the existing regulatory provisions concerning State procedures that the 
    SEA does not make a final determination regarding an LEA's eligibility 
    for assistance under Part B without first giving reasonable notice and 
    an opportunity for a hearing (consistent with section 612(a)(13)). The 
    Secretary also proposes to retain as proposed Sec. 300.145 the existing 
    regulatory provision regarding recovery of funds for misclassified 
    children. The statutory provision regarding recovery of funds for 
    misclassified children was removed by the IDEA Amendments of 1997. In 
    light of the fact that funds under section 611 of the Act will continue 
    to be distributed based on a child count until some time in the future, 
    however, the Secretary believes that prudent administration of Federal 
    funds dictates that States continue to recover funds allocated among 
    districts on the basis of incorrect child counts. The Secretary does 
    not believe that this requirement will impose additional burden on 
    States as all States already have these procedures. When the funding 
    formula changes to the permanent formula under proposed Sec. 300.706, 
    this provision will be removed.
        Proposed Sec. 300.146 would add the new requirement of section 
    612(a)(22) regarding SEA examination of data to determine if 
    significant discrepancies are occurring in the rate of long-term 
    suspensions and expulsions of children with disabilities among State 
    agencies and LEAs in the State and as compared to the rates for 
    nondisabled children. As provided in the statute, if discrepancies are 
    occurring, the SEA reviews and, if appropriate, revises its policies, 
    procedures, and practices relating to the development and 
    implementation of IEPs, the use of behavioral interventions, and 
    procedural safeguards.
        Proposed Sec. 300.147 adds the new statutory requirements of 
    section 612(b) concerning information that is required if an SEA is 
    providing direct services. The Secretary interprets the statutory 
    provision regarding requirements that must be met by an SEA as not 
    including requirements relating to certain use of funds provisions, 
    reflecting the different rules for SEA and LEA use of Part B funds. 
    This regulation would replace the current regulatory provision on SEA 
    provision of direct services.
        Proposed Sec. 300.148 adds the new statutory requirement of section 
    612(a)(20) concerning public participation in the adoption of any 
    policies and procedures needed to comply with Part B of the Act. The 
    proposed regulation would apply the procedures for public participation 
    regarding State plans in the current regulations, with appropriate 
    revisions as described, to the adoption of State policies and 
    procedures in the future. Those procedures are in this NPRM in proposed 
    Secs. 300.280-300.284. The Secretary believes that these procedures are 
    necessary to ensure that there is an adequate opportunity for public 
    participation in the development of State policies and procedures 
    related to the provision of special education and related services to 
    children with disabilities. In addition, the Secretary does not see any 
    indication in the IDEA Amendments of 1997 of an intention by Congress 
    to lessen requirements concerning public participation in the 
    development of State policies and procedures. The existing regulatory 
    provision concerning consultation would be deleted, reflecting a 
    statutory change. The existing regulatory provision concerning other 
    Federal programs also would be deleted, in accordance with statutory 
    changes.
        Proposed Sec. 300.150 incorporates the statutory requirement of 
    section 612(a)(21)(A) that the State establish and maintain an advisory 
    panel to provide guidance with respect to special education and related 
    services for children with disabilities in the State.
        Proposed Sec. 300.152 incorporates the existing regulatory 
    provision, and a note concerning commingling of Part B funds with State 
    funds, with appropriate revisions, reflecting the requirements of 
    section 612(a)(18)(B).
        Proposed Sec. 300.153 maintains the existing regulatory provision, 
    regarding State-level nonsupplanting, appropriately revised, consistent 
    with section 612(a)(18)(C). The note in the existing regulatory 
    provision on nonsupplanting would be removed as it would be confusing 
    in light of the new statutory State-level maintenance of effort 
    requirement addressed in proposed Sec. 300.154.
        Proposed Sec. 300.154 reflects the new statutory requirement of 
    section 612(a)(19) which prohibits the State from reducing the amount 
    of State financial support for special education and related services 
    below the level of that support for the preceding fiscal year. If the 
    State does reduce State support, the Secretary is directed to reduce 
    funds to the State in the subsequent year by an amount equal to the 
    amount by which the State failed to meet the requirement. The statute 
    also provides that waivers are possible under certain described 
    circumstances, and, if granted, in the year following the waiver the 
    State must meet the level of support it had provided in the year before 
    the waiver.
        Proposed Secs. 300.155 and 300.156 would simplify, in light of 
    statutory changes, the provision in current regulations regarding 
    policies and procedures for use of Part B funds, and annual 
    descriptions of the use of Part B funds. Proposed Sec. 30.156(b) would 
    incorporate the longstanding Department practice of permitting a State 
    to submit a letter instead of filing a new report when the State's use 
    of funds that are retained by the State has not changed from the prior 
    report submitted.
    LEA and State Agency Eligibility--General
        Similar to the State eligibility scheme as described, under section 
    613(a) LEAs and State agencies now also must demonstrate eligibility. 
    Section 613(b)
    
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    specifies that if an LEA or State agency has policies and procedures on 
    file with the State that meet a requirement of the new Act, the SEA 
    shall consider the LEA or State agency to have met that requirement. 
    Policies and procedures remain in effect until modified as the LEA or 
    State agency decides necessary, or until required by the SEA because of 
    changes to the Act or its implementing regulations, a new 
    interpretation of the Act by Federal or State courts, or an official 
    finding of noncompliance with Federal or State law or regulations. A 
    provision would be added to clarify that the same rules apply to 
    modifications to LEA or State agency policies and procedures as apply 
    to the original ones consistent with the statutory provision regarding 
    State eligibility. These provisions are in proposed Secs. 300.180--
    300.182.
        The excess costs provisions in the current regulations would be 
    condensed and streamlined in these proposed regulations in 
    Secs. 300.184-300.185.
        Proposed Secs. 300.190 and 300.192 reflect the new statutory 
    requirements of section 613(e) concerning joint establishment of 
    eligibility and requirements for education service agencies (formerly 
    intermediate educational units). These provisions eliminate the $7,500 
    minimum grant requirement of prior law and add an explicit prohibition 
    on an SEA from requiring a charter school that is an LEA to jointly 
    establish eligibility unless the SEA is explicitly permitted to do so 
    under State law.
        Proposed Sec. 300.194 reflects the new statutory provision in 
    section 613(i) concerning State agency eligibility. The Secretary 
    proposes, in these regulations, to require that these agencies meet all 
    the conditions of Subpart B of these proposed regulations that apply to 
    LEAs, in keeping with the authorization in section 613(i)(2).
        Proposed Sec. 300.196 reflects the statutory provision of section 
    613(c) that if the SEA determines that an LEA or State agency is not 
    eligible, the SEA notifies the LEA or State agency of that 
    determination, and provides the LEA or State agency with reasonable 
    notice and an opportunity for a hearing.
        Proposed Sec. 300.197 adds the statutory requirements concerning 
    SEA actions if an LEA is failing to comply with the requirements of 
    Part B.
    LEA Eligibility--Specific Conditions
        In accordance with the statutory changes in section 613(a), 
    proposed Sec. 300.220 simplifies the basic eligibility conditions for 
    LEAs. This provision would replace most of the current regulations 
    concerning the content of LEA applications. Under these proposed 
    regulations LEAs must have in effect policies, procedures, and programs 
    that are consistent with State policies and procedures required to 
    demonstrate State eligibility.
        With regard to implementation of the State's comprehensive system 
    of personnel development, proposed Sec. 300.221 reflects the 
    requirement in section 613(a)(3) that the LEA demonstrate that all 
    personnel necessary to carry out this part are appropriately and 
    adequately prepared, consistent with State requirements, and that to 
    the extent the LEA determines appropriate, it contributes to and uses 
    the CSPD established by the State.
        Proposed Sec. 300.230 reflects the statutory provision of section 
    613(a)(2)(A) that funds under Part B of the Act must be used in accord 
    with the requirements of Part B, may only be used for the excess costs 
    of providing special education and related services to children with 
    disabilities, and must supplement and not supplant other State, local 
    and Federal funds.
        Proposed Sec. 300.231 reflects the new statutory provision that 
    LEAs not reduce the level of expenditure of LEA funds.
        Proposed Sec. 300.232 incorporates new statutory exceptions to the 
    local maintenance of effort (MOE) requirement. With regard to the 
    exception relating to the voluntary departure or departure for just 
    cause of special education personnel, the Secretary in these proposed 
    regulations proposes to clarify that the exception only applies if 
    personnel departing are replaced by qualified, lower-salaried 
    personnel. This limitation would not permit a public agency to meet the 
    MOE requirement by removing personnel and failing to replace them. The 
    Secretary does not believe that the statutory provision was intended to 
    permit a reduction in expenditures through attrition unless one of the 
    other exceptions also applied. Other statutory exceptions added include 
    exceptions covering a decrease in enrollment of children with 
    disabilities; the termination of an obligation of the agency to pay for 
    an exceptionally costly program, as determined by the SEA, because the 
    child has left the agency, has reached the age at which the agency no 
    longer has an obligation, or the child no longer needs special 
    education; and the termination of costly expenditures for long-term 
    purchases. A note following this section would quote from the House 
    Committee Report on the issue of exceptions to maintenance of effort 
    for voluntary departure of special education personnel, which provides 
    the basis for the clarification of this exception.
        Proposed Sec. 300.233 reflects the new statutory provision in 
    section 613(a)(2)(C) that in years when the Federal appropriation under 
    section 611 is more than $4,100,000,000 an LEA may treat as local funds 
    up to 20 percent of the amount of funds it receives under Part B that 
    exceed the amount it received under Part B in the prior year. Under 
    certain circumstances, an SEA may be authorized under State law to 
    prevent an LEA from exercising this authority.
        Proposed Sec. 300.234 incorporates a new statutory provision 
    concerning use of Part B funds in schoolwide project schools under 
    section 1114 of the Elementary and Secondary Education Act of 1965. The 
    amount of Part B funds that may be used in a schoolwide project is 
    limited, by statute, to the amount arrived at by multiplying the per 
    child amount the LEA receives under Part B by the number of children 
    with disabilities participating in the schoolwide project school. The 
    Secretary interprets the statutory provision regarding use of funds to 
    require that these funds may be used without regard to the excess costs 
    requirement, and that in calculating supplement, not supplant and 
    maintenance of effort under Part B, these funds be considered as 
    Federal Part B funds. An explicit statement that except as to the 
    flexibility granted concerning how the Part B funds are used, all other 
    requirements of Part B must be met by an LEA using Part B funds in a 
    schoolwide project school would also be added. This reflects the 
    Secretary's interpretation that this provision cannot be used as a 
    basis for not providing services to children with disabilities in 
    accordance with the other requirements of the Act. A note following 
    this section would caution that children in schoolwide project schools 
    must still receive services in accordance with a properly developed IEP 
    and must still be afforded all of the rights and services guaranteed to 
    children with disabilities under the Act.
        Proposed Sec. 300.235 incorporates the provisions of section 
    613(a)(4) regarding permissive use of Part B funds for special 
    education and related services and supplementary aids and services 
    provided to a child with disabilities that also benefit other children 
    and to develop and implement a coordinated services system. The 
    provision would make clear that an LEA will not be found to violate the 
    commingling, excess costs, supplement not supplant, or maintenance of 
    effort requirements
    
    [[Page 55039]]
    
    based on its use of funds in accordance with this provision.
        Proposed Secs. 300.240-300.250 reflect the new statutory provisions 
    of section 613(a) (5), (6) and (7), (f) and (g) related to treatment of 
    charter schools and their students, information for the SEA to carry 
    out its duties under Part B, public availability of documents related 
    to LEA eligibility, coordinated services systems, and school-based 
    improvement plans. A note following proposed Sec. 300.241 would explain 
    that the provisions of the Part 300 regulations that apply to public 
    schools also apply to children in public charter schools and that 
    children with disabilities in charter schools retain all their rights 
    under these regulations.
    Secretary of the Interior--Eligibility
        Proposed Secs. 300.260--300.267 incorporate the revised statutory 
    provisions concerning the payment to the Secretary of the Interior into 
    the existing regulations on this topic. In proposed Sec. 300.260 
    references to State eligibility requirements would be updated to 
    reflect the new State eligibility requirements of the Act. In proposed 
    Sec. 300.262 the amount the Secretary of the Interior may use of the 
    payment for administrative costs would be changed to 5 percent of its 
    payment or $500,000 whichever is greater, reflecting the increase in 
    the minimum for State administration in section 611. Provisions in the 
    statute regarding a plan for coordination of services for all Indian 
    children residing on reservations covered by Part B (section 
    611(i)(4)), definitions of the terms ``Indian'' and ``Indian tribe'' 
    (section 602 (9) and (10)), and provisions regarding the establishment 
    of an advisory board and reports by that board (sections 611(i) (5) and 
    (6)(A)) would also be added.
    Public Participation
        Proposed Secs. 300.280-300.284 incorporate the existing regulatory 
    provisions concerning public participation, revised to reflect the 
    statutory changes from State plans to State eligibility demonstrations. 
    The Secretary believes that these provisions remain necessary to ensure 
    adequate public participation in the development of State policies and 
    procedures regarding the provision of special education and related 
    services to children with disabilities under Part B of the Act, and 
    sees nothing in the changes in the IDEA Amendments of 1997 that 
    indicates a Congressional intent to reduce these requirements.
    
    Subpart C--Services
    
    Free Appropriate Public Education
        Proposed Sec. 300.300 is essentially the same as in the current 
    regulation, with minor changes to update and accommodate new statutory 
    provisions. Proposed Secs. 300.301-300.308 also are restatements of the 
    current regulatory provisions at these sections.
        Reflecting the Secretary's long standing interpretation of the 
    obligation to make FAPE available based on individual needs, a new 
    Sec. 300.309 would be added to address extended school year services. 
    This provision would require that each public agency ensure that 
    extended school year services are available to each child with a 
    disability to the extent necessary to ensure that a free appropriate 
    public education is available to the child, based on an individual 
    determination of the child's needs by the child's IEP team. The term 
    ``extended school year services'' is defined to be special education 
    and related services that are provided to a child with a disability 
    beyond the normal school year, in accordance with the child's IEP, at 
    no cost to the child's parents, and that meet the standards of the SEA. 
    A note following this section would explain that agencies may not limit 
    extended school year services only to children with particular 
    categories of disability or unilaterally limit the duration of 
    services. The note would also explain that nothing in Part B requires 
    that every child with a disability is entitled to, or must receive, 
    extended school year services. A second note would explain that States 
    may establish standards for decisions regarding which children should 
    receive extended school year services and provides examples of 
    acceptable factors that may be considered. These changes reflect the 
    Secretary's policy guidance over the years on this topic, which itself 
    has been informed by a number of Federal court decisions over the last 
    twenty years under Part B of the Act. The Secretary believes that the 
    changes are necessary to ensure that children with disabilities who 
    need extended school year services have appropriate access to those 
    services, and that those services are a part of FAPE.
        Proposed Sec. 300.311 reflects new statutory provisions in sections 
    612(a)(1)(B) and 614(d)(6) concerning students with disabilities who 
    are in adult correctional facilities. Paragraph (a) would specify that 
    the obligation to make FAPE available to all children with disabilities 
    does not apply to students aged 18 through 21 to the extent that State 
    law does not require that special education and related services under 
    Part B be provided to students with disabilities who, in the last 
    educational placement prior to their incarceration in an adult 
    correctional facility, were not actually identified as being a child 
    with a disability and did not have an IEP under Part B. This language 
    is taken from the statute, with minor changes for the sake of clarity. 
    Paragraph (b) would provide that certain requirements of Part B do not 
    apply to students with disabilities who are convicted as adults under 
    State law and incarcerated in adult prisons: the provisions relating to 
    participation of children with disabilities in general assessments, and 
    the provisions relating to transition planning and transition services 
    for students whose eligibility under Part B will end, because of their 
    age, before they will be released from prison. The Secretary interprets 
    the provision concerning transition services to require consideration 
    of the student's sentence and eligibility for early release because the 
    required determination must happen before the student actually is 
    released from prison. Reflecting statutory requirements, paragraph (c) 
    would specify that the IEP team of a student with a disability who is 
    convicted as an adult under State law and incarcerated in an adult 
    prison may modify the student's IEP or placement if the State has 
    demonstrated a bona fide security or compelling penological interest 
    that cannot otherwise be accommodated.
    Evaluations and Reevaluations
        Proposed Secs. 300.320 and 300.321 would be added to reflect the 
    basic statutory requirements concerning evaluations and reevaluations 
    contained in section 614 (a) and (b) of the Act. Evaluations and 
    reevaluations would be addressed in greater detail in the discussion of 
    proposed Secs. 300.530-300.536.
    Individualized Education Programs
        Proposed Sec. 300.340 would restate the current regulatory 
    definitions of ``IEP'' and ``participating agency.''
        Proposed Sec. 300.341 would restate the current regulatory 
    provision concerning the SEA responsibility for development and 
    implementation of IEPs, with one minor wording change. Throughout these 
    proposed regulations, the Secretary proposes to use the term 
    ``religiously-affiliated'' rather than the term ``parochial'' as the 
    former is more inclusive and accurately reflects the type of schools 
    described. These proposed regulations distinguish between children 
    placed in private schools by public agencies and those
    
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    placed in private schools by their parents. Proposed Secs. 300.401 and 
    300.402 address children placed by public agencies in private schools. 
    Proposed Sec. 300.403 concerns placement in private schools when the 
    provision of FAPE is at issue. Proposed Secs. 300.450-300.462 concern 
    children placed by their parents in private schools.
        Proposed Sec. 300.342 (a) and (b) would restate, with minor 
    nonsubstantive changes, the current regulatory provisions regarding 
    when IEPs must be in effect. A new paragraph (c) would be added 
    regarding the use of IFSPs for children aged 3 through 5 as provided 
    for in the statute at section 614(d)(2)(B), and reflecting the 
    Secretary's interpretation that this provision permits, if State policy 
    provides and the public agency and parent agree, the use of an IFSP 
    that meets the content requirements of section 636(d) of the Act in 
    place of a document meeting the IEP content requirements of section 
    614(d) of the Act, for children aged 3 through 5. With regard to the 
    requirement for agreement by the parents to using an IFSP instead of an 
    IEP, the Secretary proposes to require written informed consent that is 
    based on an explanation of the differences between an IFSP and an IEP 
    in light of the importance of the IEP as the statutory vehicle for 
    ensuring the provision of FAPE to children with disabilities. For most 
    children who are five-years old, and for many 3- and 4-year olds as 
    well, the use of an IEP that must be tied to the general curriculum 
    provided to nondisabled age peers, is encouraged.
        The Secretary proposes to add a new paragraph (d) to this section 
    representing the Secretary's understanding of section 201(a)(2)(C) of 
    Pub. L. 105-17 that IEPs that meet the requirements of section 614(d) 
    (1)-(5) must be in effect as of July 1, 1998. Delaying implementation 
    of these provisions beyond that date would be inconsistent with the 
    right of children with disabilities to an IEP that meets the new 
    requirements as of July 1, 1998. The note following this section from 
    current regulations would be retained with minor changes, and a new 
    note added to clarify that the provisions of section 614(d)(6) of the 
    Act, relating to services to children with disabilities in adult 
    prisons, took effect on June 4, 1997.
        Proposed Sec. 300.343(a) restates the current regulatory provision 
    concerning the general standard for conducting IEP meetings. In 
    paragraph (b) of this section, the Secretary would add a new provision 
    on timelines for IEPs that would require that an offer of services 
    based on an IEP must be made within a reasonable period of time from a 
    public agency's receipt of parent consent to an initial evaluation 
    reflecting the Department's longstanding interpretation of the 
    requirements of the statute. A note following this section would be 
    added to explain that for most children it would be reasonable to 
    expect that a public agency would offer services based on an IEP within 
    60 days of receipt of parent consent for initial evaluation. The 
    Secretary proposes this reasonable time standard in light of the 
    importance of appropriate educational services for children with 
    disabilities to enable them to receive FAPE and the frequent long 
    delays observed between referral for special education evaluation and 
    actual provision of services. Paragraph (b) would retain the current 
    regulatory timeline of 30 days from the determination that the child is 
    a child with a disability to an IEP meeting. A new paragraph (c) would 
    also be added to this section that revises the current regulatory 
    provision concerning review of IEPs to reflect new statutory 
    requirements in section 614(d)(4). The note following this section in 
    current regulations would be deleted as unnecessary and confusing in 
    light of changes proposed to the regulation.
        Proposed Sec. 300.344 would revise the current regulatory provision 
    concerning IEP team membership to reflect the requirements of section 
    614(d)(1)(B). Under this provision the IEP team includes the parents of 
    the child with a disability; at least one regular education teacher (if 
    the child is, or may be, participating in regular education); at least 
    one special education teacher or, if appropriate, at least one special 
    education provider of the child; a representative of the LEA who meets 
    certain specified requirements; an individual who can interpret the 
    instructional implications of evaluation results; at the discretion of 
    the parent or agency, other individuals who have knowledge or special 
    expertise regarding the child, including related services personnel; 
    and, if appropriate, the child.
        The Secretary proposes to expand the current regulatory provision 
    requiring the agency to invite students to participate in IEP meetings 
    if the meeting will include consideration of the statement of needed 
    transition services to also include meetings that will include 
    consideration of transition service needs, in accordance with 
    Sec. 300.347(b)(1) and note 5 following that section. This reflects the 
    Department's longstanding regulatory position that a student with a 
    disability be involved in the development of an IEP if transition 
    services are being considered. The current regulatory provision 
    regarding taking other steps to ensure consideration of the student's 
    preferences and interest if the student does not attend the IEP meeting 
    would be maintained. This section also would maintain the current 
    regulatory provisions concerning inviting representatives of any other 
    agency that is likely to be responsible for providing or paying for 
    transition services, including taking other steps to obtain 
    participation if a representative invited to a meeting does not attend.
        Note 1 following this section would be revised in light of the 
    statutory changes. It would also explain that an LEA may designate one 
    or more regular education teachers of the child to attend the IEP 
    meeting, if the child has more than one. It would further state that if 
    all of the child's teachers are not participating in the IEP meeting, 
    LEAs are encouraged to seek input from teachers who will not be 
    attending, and should ensure that teachers who do not attend the IEP 
    meeting are informed about the results of the meeting, including 
    receiving a copy of the IEP. Finally, the note would explain that LEAs 
    are encouraged, in the case of a child whose behavior impedes the 
    learning of the child or others, to have a person knowledgeable about 
    positive behavior strategies at the meeting. Note 2 following this 
    section in the current regulations would be removed.
        Proposed Sec. 300.345 largely would maintain the current regulatory 
    provision concerning parent participation in IEP meetings based on the 
    statutory requirements at section 614(d)(1)(B). It would be revised 
    only by adding to the parent notification provisions that for students 
    of any age, if a purpose of the IEP meeting is either the development 
    of a statement of transition service needs or consideration of needed 
    transition services, the agency's notice to the parent must indicate 
    that purpose, and that the agency must invite the student to attend. 
    This change merely modifies the current regulation to accommodate the 
    new statutory provision requiring a statement of transition service 
    needs for students beginning no later than age 14 contained in proposed 
    Sec. 300.347.
        Proposed Sec. 300.346 would add a new provision to the regulations 
    based on the requirements of section 614(d)(3) concerning development 
    of the IEP. That section requires that in developing each child's IEP 
    the IEP team consider the strengths of the child and the concerns of 
    the parents for enhancing the education of their child and the results 
    of the initial or most recent
    
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    evaluation of the child. That section requires that the IEP team also 
    consider a number of special factors that may apply to individual 
    children. For example, if a child's behavior impedes his or her 
    learning or that of others, the IEP team must consider, if appropriate, 
    strategies, including positive behavioral interventions, strategies, 
    and supports to address that behavior. These statutory requirements are 
    included in proposed Sec. 300.346(a). Proposed Sec. 300.346(b) would 
    clarify that IEP teams consider these factors in review and revision of 
    IEPs as well as in their initial development. A paragraph (c) also 
    would be added to clarify that if in considering a factor, the IEP team 
    determines that a child needs a particular device or service (including 
    an intervention, accommodation, or other program modification) in order 
    for the child to receive FAPE, the IEP team must include a statement to 
    that effect in the child's IEP. It would be an anomalous result if an 
    IEP team determined that a service or device was needed to address one 
    of the statutory special factors, and that service or device were not 
    included in the child's IEP.
        Paragraph (d) of this proposed section would add the statutory 
    requirements of section 614(d) (3)(C) and (4)(B) which specify that the 
    regular education teacher, to the extent appropriate, must participate 
    in the development, review, and revision of the IEP of the child, 
    including assisting in the determination of appropriate positive 
    behavioral interventions and strategies and the determination of 
    supplementary aids and services, program modifications, and support for 
    school personnel. Paragraph (e) of this section would incorporate the 
    new statutory provision of section 614(e) which specifies that IEP 
    teams are not required to include information under one component of a 
    child's IEP that is already included under another. Three notes would 
    also be added following this section. The first would recognize the 
    importance of the consideration of the special factors in development 
    of a child's IEP. As appropriate, consideration of these factors must 
    include a review of valid evaluation data and the observed needs of the 
    child resulting from the evaluation process. The second note would 
    acknowledge the statement in the House Committee Report regarding Pub. 
    L. No. 105-17 that states that for children who are deaf or hard of 
    hearing the IEP team should implement the special consideration 
    provision in a manner consistent with the ``Deaf Students Education 
    Services'' policy guidance from the Department. The third note would 
    explain how the considerations addressed in this section affect the 
    development of an IEP for a child who is limited-English proficient. 
    This is one of several notes addressing the responsibility of public 
    agencies to effectively meet the needs of children with limited English 
    proficiency who have a disability or are suspected of having a 
    disability. The Secretary requests public comment on whether additional 
    clarification would be useful.
        Proposed Sec. 300.347 would replace the current regulatory 
    provision on the contents of IEPs with the new statutory requirements 
    from section 614(d)(1)(A) regarding the contents of an IEP. In 
    addition, proposed Sec. 300.347 would maintain the current regulatory 
    provision regarding transition services on a student's IEP which states 
    that if the IEP team determines that services are not needed in one or 
    more of certain of the areas specified in the definition of transition 
    services, the IEP team must include a statement to that effect and the 
    basis upon which the determination was made. In addition, the Secretary 
    would add, as paragraph (d), a statement that special rules concerning 
    the content of IEPs apply for children with disabilities who are in 
    adult prisons, consistent with section 614(d)(6) of the Act. The notes 
    following the current regulatory provision on IEP contents would be 
    shortened and condensed into one note regarding transition services. 
    Notes would be added following this section explaining several issues 
    raised by the new provisions on IEP contents--the emphasis on the 
    general curriculum, the focus of the IEP on enabling children with 
    disabilities to access the general curriculum, the relationship of 
    teaching and related service methodologies or approaches and the 
    content of the IEP, the new reporting to parents requirement and the 
    new statement of transition service needs. A final note would explain 
    that it would not be a violation of Part B of the Act for a public 
    agency to begin planning for transition service needs for students 
    younger than age 14 and transition services for students younger than 
    age 16.
        Proposed Sec. 300.348 would maintain the current regulatory 
    provision concerning agency responsibility for transition services, 
    consistent with section 614 (d)(5) and (d)(1)(A)(vii). Current 
    regulatory provisions concerning private school placements by public 
    agencies and children with disabilities in private schools would be 
    retained as proposed Secs. 300.349 and 300.350, with minor wording 
    changes. These sections reflect the Secretary's interpretation of how 
    public agencies meet their responsibilities regarding conducting IEP 
    meetings under section 614(d)(1)(B) in light of the requirements of 
    section 612(a)(10) (A) and (B) regarding providing services to children 
    with disabilities in private schools. The current regulatory provision 
    concerning IEP accountability would also be maintained as proposed 
    Sec. 300.351. The Secretary believes that this provision continues to 
    represent the appropriate interpretation of the statutory provisions 
    concerning IEPs. However, the note following this section has been 
    revised in light of the heightened focus in the IDEA Amendments of 1997 
    on providing children with disabilities the instruction, services and 
    modifications that will enable them to achieve a high standards.
    Direct Services by the SEA
        Proposed Sec. 300.360(a) would replace the current regulatory 
    provision describing the SEA's use of funds, that otherwise would have 
    gone to an LEA, to provide direct services, with the new statutory 
    requirements on this issue. Paragraphs (b) and (c) would be maintained 
    from the current regulations, reflecting the Secretary's continuing 
    interpretation of how SEAs implement direct services. The note 
    following this section would be retained, with material deleted that 
    has been rendered obsolete by the new statute. Proposed Sec. 300.361 
    would be retained from the current regulations, consistent with the 
    requirements of section 613(h)(2) of the Act.
        Section 611(f)(3) authorizes several new uses of money that the 
    State may retain at the State level, including to establish and 
    implement the mediation process; to assist LEAs in meeting personnel 
    shortages; to develop a State Improvement Plan under subpart 1 of Part 
    D of the Act; to carry out activities at the State and local levels to 
    meet performance goals and to support implementation of the State 
    Improvement Plan; to supplement other amounts used to develop and 
    implement a Statewide coordinated services system (but not more than 
    one percent of the grant under section 611 of the Act); and for 
    capacity building and system improvement subgrants to LEAs. The current 
    regulatory provision would be expanded by adding these new statutory 
    provisions as Sec. 300.370(a) (3)-(8). Proposed Sec. 300.370(a) (1) and 
    (2) reflect statutory provisions that were in the prior law and are 
    retained in section 611(f)(3). The provision in the current regulations 
    concerning State matching would be deleted, reflecting the deletion of 
    this requirement from the statute.
    
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        Proposed Sec. 300.372 would replace the current regulatory 
    provision regarding the applicability of the nonsupplanting provision 
    to funds that the State uses with the new requirements from section 
    611(f)(1)(C) that the SEA may use funds retained without regard to the 
    prohibition on commingling and the prohibition on supplanting other 
    funds.
    Comprehensive System of Personnel Development
        The regulatory provisions in proposed Secs. 300.380-300.382 would 
    be revised to reflect new statutory requirements concerning a State's 
    comprehensive system of personnel development (CSPD). Proposed 
    Sec. 300.380 would require that each State's CSPD be consistent with 
    Part B of the Act and the CSPD provision of Part H (to be renamed Part 
    C); be designed to ensure an adequate supply of qualified special 
    education, regular education and related services personnel; be updated 
    at least every five years; and meet the requirements of Secs. 300.381-
    300.382, which contain the provisions of section 653 (b)(2)(D) and 
    (c)(3)(D), as required by section 612(a)(14). Because the statute makes 
    the CSPD the same as the personnel sections of a State Improvement 
    Plan, the Secretary proposes to add a provision to make clear that a 
    State with a State Improvement grant would be considered to have met 
    the requirements of this section.
        Proposed Sec. 300.381 would require a State to include an analysis 
    of State and local needs for professional development of personnel to 
    serve children with disabilities that must include at least certain 
    minimum specified information. Proposed Sec. 300.382 would require 
    States to describe the strategies in a number of specified areas that 
    they will use to address the needs identified under proposed 
    Sec. 300.381, including identified needs for in-service and pre-service 
    preparation to ensure that all personnel who work with children with 
    disabilities (including both professional and paraprofessional 
    personnel who provide special education, general education, related 
    services, or early intervention services) have the skills and knowledge 
    necessary to meet the needs of children with disabilities.
    
    Subpart D--Children in Private Schools
    
    Children With Disabilities in Private Schools Placed or Referred by 
    Public Agencies
        Sections 300.400-300.402 of these proposed rules would incorporate 
    the existing rules regarding children with disabilities placed in 
    private schools by public agencies and children with disabilities 
    placed in private schools by their parents. These proposed rules 
    reflect the unchanged statutory provision in section 612(a)(10)(B) that 
    children with disabilities placed in or referred to private schools or 
    facilities by an SEA or LEA must be provided special education and 
    related services (1) in accordance with an IEP, and (2) at no cost to 
    their parents. Section 612(a)(10)(B) further requires that the SEA must 
    ensure that the private facilities meet State standards and that 
    children placed in those facilities have the same rights they would 
    have if served by a public educational agency. The IDEA Amendments of 
    1997 added new requirements concerning children placed by their parents 
    in private schools. Section 612(a)(10)(C)(i) provides that an LEA is 
    not required to pay for the cost of education, including special 
    education and related services, of a child with a disability at a 
    private school or facility if the LEA made FAPE available to the child 
    and the parents elected to place the child in the private school. 
    Parent reimbursement is subject to certain requirements described in 
    the next paragraph of this preamble. This provision would be reflected 
    in proposed Sec. 300.403(a). Proposed Sec. 300.403(b) would be retained 
    from the current regulations to clarify that due process procedures can 
    be used to resolve disagreements about the provision of FAPE and 
    financial responsibility of the public agency.
        Section 612(a)(10)(C)(ii) describes the circumstances under which a 
    parent may seek reimbursement from a public agency for a private school 
    placement. This provision states that a court or a hearing officer may 
    require the public agency to reimburse parents for the cost of a 
    private school placement if the court or hearing officer finds that the 
    public agency had not made FAPE available to the child in a timely 
    manner. It also states that reimbursement may be reduced or denied if 
    (1) at the child's most recent IEP meeting the parents did not inform 
    the IEP team that they were rejecting the public agency's proposed 
    placement, including stating their concerns and their intent to enroll 
    their child in a private school at public expense; (2) ten (10) 
    business days (including holidays that occur on a business day) prior 
    to the removal of the child from public school, the parents did not 
    give written notice that they were rejecting the public agency proposal 
    and their intent to enroll their child in a private school at public 
    expense; (3) prior to the parents' removal of the child from a public 
    school, the public agency notified the parents, through the prior 
    written notice required under section 615(b)(7) of the Act, of its 
    intention to evaluate the child, but the parents did not make the child 
    available for evaluation; or (4) upon a judicial finding of 
    unreasonableness regarding the actions of the parents. Reimbursement 
    may not be reduced or denied for failure to provide that notice if: (1) 
    The parent is illiterate and cannot write in English; (2) compliance 
    with an evaluation would likely result in physical or serious emotional 
    harm to the child; (3) the school prevented the parent from providing 
    the notice; or (4) the parents had not received notice, pursuant to 
    section 615 of the Act, of the notice requirement. These provisions 
    would be incorporated in the proposed regulations at Sec. 300.403(c)-
    (e).
    Children With Disabilities Enrolled by their Parents in Private Schools
        Proposed Sec. 300.450 would retain the current regulatory 
    definition of ``private school children with disabilities.''
        Section 612(a)(10)(A) of the Act provides that to the extent 
    consistent with the number and location of children with disabilities 
    who are enrolled by their parents in private elementary and secondary 
    schools, provision is made for the participation of those children in 
    the program assisted or carried out under this part by providing for 
    these children special education and related services, by spending a 
    proportionate amount of the Federal funds available under Part B of the 
    Act on services for these children. Those services may be provided to 
    children with disabilities on the premises of private, including 
    parochial, schools, to the extent consistent with law. The statute also 
    requires that the SEA's and LEA's child find activities apply to 
    children with disabilities who are placed by their parents in private, 
    including parochial, schools.
        Proposed Secs. 300.451-300.462 would incorporate these statutory 
    requirements, and appropriate provisions from existing regulatory 
    requirements (from 34 CFR 76.650-76.662) regarding the participation of 
    private school students with disabilities. The term ``religiously-
    affiliated'' would be used instead of the statutory term ``parochial'' 
    as the Secretary assumes that all religious schools were intended by 
    Congress to be included, not just those organized on a parish basis. 
    The child find obligation from the statute is reflected in proposed 
    Sec. 300.451. Proposed Sec. 300.452 describes the basic statutory 
    obligation to provide special
    
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    education and related services to private school children with 
    disabilities and says that obligation is met by meeting the 
    requirements of Secs. 300.453-300.462. In Sec. 300.453, the Secretary 
    interprets the statutory limitation on the amount of funds that LEAs 
    must spend on providing special education and related services to 
    private school children with disabilities as the same proportion of the 
    LEA's total subgrant under sections 611 and 619 of the Act as the 
    number of private school children with disabilities aged 3 through 21 
    and 3 through 5, respectively, is to the total numbers of children with 
    disabilities in its jurisdiction in each of those age ranges. A note 
    would be added after this section to clarify that SEAs and LEAs are not 
    prohibited from providing more services to private school children with 
    disabilities than is required under the Act.
        Proposed Sec. 300.454(a) specifies that no individual private 
    school child with a disability has a right to receive some or all of 
    the special education and related services the child would receive if 
    enrolled in a public school. This provision reflects the Secretary's 
    longstanding regulatory interpretation of the statutory limitations on 
    the obligation to provide services to private school children with 
    disabilities, which now specifically reference the limited amount of 
    funds that LEAs must spend on these services. LEAs should have the 
    authority to decide, after consultation with representatives of private 
    school children with disabilities, how best to provide services to this 
    population. Proposed Sec. 300.454 (b)-(e) specifies that LEAs make 
    decisions about which children to serve and what services to be 
    provided to private school children with disabilities, and how those 
    services will be provided and evaluated after timely and meaningful 
    consultation with appropriate representatives of private school 
    children with disabilities that gives those representatives a genuine 
    opportunity to express their views on these subjects. These rules are 
    similar to requirements governing how decisions are made about services 
    provided to private school children under Title I of the Elementary and 
    Secondary Education Act, and are based on the consultation provisions 
    in 34 CFR 76.652 that have applied to services to private school 
    children with disabilities under the Act for many years.
        Proposed Sec. 300.455 specifies that services provided to private 
    school children with disabilities must be comparable in quality to 
    services provided to children with disabilities enrolled in public 
    schools and provides a definition of ``comparable in quality.'' This 
    proposed section also specifies that the IEPs developed for these 
    children must address the services that the LEA has determined that it 
    will provide to the child, in light of the services that the LEA has 
    determined, through the consultation process, that it will make 
    available to private school children with disabilities. (The proposed 
    regulations will maintain the current regulatory provision at 
    Sec. 300.341(b)(2) requiring that IEPs be developed for children 
    enrolled in private schools and receiving special education and related 
    services from a public agency.)
        Proposed Sec. 300.456(a) would incorporate the statutory provision 
    that services may be provided on-site at the child's private school, to 
    the extent consistent with law. The term ``religiously-affiliated'' is 
    used instead of the statutory term, ``parochial.'' A note would be 
    included after this section that recognizes that under recent decisions 
    of the U.S. Supreme Court, LEAs may provide special education and 
    related services on-site at religiously-affiliated private schools in a 
    manner that does not violate the Establishment Clause of the First 
    Amendment to the U.S. Constitution.
        Proposed Sec. 300.456(b) would specify that transportation to a 
    site other than the child's private school must be provided if 
    necessary for the child to benefit from or participate in the other 
    services offered, based on the Secretary's longstanding position that 
    all children with disabilities must be provided transportation to and 
    from other services provided under the Act, if that transportation is 
    necessary to enable them to benefit from those other services. 
    Paragraph (b)(2) of this section would clarify that the cost of that 
    transportation may be included in calculating whether the LEA has met 
    the requirement of Sec. 300.453. A second note following this section 
    would explain that transportation is not required between the student's 
    home and the private school, but only between the site of the services, 
    if other than the private school, and the student's private school or 
    the student's home, depending on the time of the services.
        In proposed Sec. 300.457(a), the Secretary interprets the statutory 
    provision regarding services to private school children with 
    disabilities to mean that the due process procedures of the Act do not 
    apply to complaints that an LEA has failed to meet the requirements of 
    Secs. 300.452-300.462, including the provision of services indicated on 
    the child's IEP. This provision is based on the statutory scheme, which 
    does not include any individual right to services for private school 
    students placed by their parents. Proposed Sec. 300.457(b) would 
    clarify that complaints that an SEA or LEA has failed to meet the 
    requirements of Secs. 300.451-300.462 may be filed under the State 
    complaint procedures addressed in this NPRM at Secs. 300.660-300.662.
        Proposed Secs. 300.458-300.462 would incorporate, with only minor 
    changes that are not intended to be substantive, the requirements from 
    34 CFR Secs. 76.657-76.662 that have applied to the Part B program of 
    the Act for many years. The Secretary believes that these provisions 
    are necessary to ensure that funds under Part B of the Act are not used 
    to benefit private schools or in ways that could raise questions of 
    inappropriate assistance to religion.
        Proposed Secs. 300.480-300.487 would repeat, with only minor 
    nonsubstantive changes, the bypass provisions from the current 
    regulations. The bypass provisions in section 612(f) are unchanged from 
    prior law.
    
    Subpart E--Procedural Safeguards
    
    Due Process Procedures for Parents and Children
        Proposed Sec. 300.500 would combine in one section two current 
    regulatory provisions that establish the general responsibility of SEAs 
    for establishing and implementing procedural safeguards and define 
    ``consent,'' ``evaluation,'' and ``personally identifiable.'' The 
    provision in proposed Sec. 300.500(a) regarding the general 
    responsibility of SEAs would be updated to include all the procedural 
    safeguards in the proposed regulations, consistent with the 
    requirements of section 615(a) of the Act. Similarly, the definition of 
    ``evaluation'' in proposed Sec. 300.500(b)(2) would be updated to refer 
    to all of the evaluation procedures in Subpart E of the proposed 
    regulation, which are based on the statutory provisions of sections 
    612(a)(6)(B) and 614 (a)-(c). A new note following this section would 
    be added to clarify that a parent's revocation of consent is not 
    retroactive in effect. For example, if a parent grants consent for an 
    evaluation, and after the evaluation is completed the parent revokes 
    consent for the evaluation, the IEP team would still be able to 
    consider that evaluation in making decisions about the child's program 
    and placement.
        Based on the requirements of section 615(b)(1), proposed 
    Sec. 300.501(a) would be revised to address the parents' opportunity to 
    inspect and review all educational records, as in the current 
    regulation, and the new statutory
    
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    requirements that parents be given an opportunity to participate in 
    meetings with respect to the identification, evaluation, and 
    educational placement of the child, and the provision of FAPE to the 
    child. In paragraph (b) of this section the Secretary proposes that the 
    statutory obligation to afford parents the opportunity to participate 
    in meetings means that parents must be given notice of the meeting, 
    including the purpose, time and location, and who will be in 
    attendance, early enough so that they have an opportunity to attend, 
    because these requirements seem essential to giving parents an 
    opportunity to participate in these meetings. In paragraph (b)(2), the 
    Secretary proposes to define ``meeting'' to make clear that only 
    certain conversations about providing educational services to a child 
    are covered, to eliminate potential confusion about the scope of this 
    requirement. Paragraph (c) of this section would incorporate the 
    requirement of section 614(f) that public agencies ensure that parents 
    are members of any group that makes decisions on the educational 
    placement of their child. The Secretary proposes in this paragraph to 
    require that public agencies use procedures like those required for 
    parent involvement in IEP team meetings, to ensure that parents are 
    members of the group that makes decisions on the educational placement 
    of their child, including notice of the meeting as described, using 
    other methods to involve parents in the meeting when parents cannot be 
    physically present, maintaining a record of attempts to ensure the 
    participation of the parents, and taking steps to ensure that parents 
    are able to understand and participate in the meetings. The Secretary 
    would adopt this position as necessary to ensure that parents 
    participate in these meetings, as required by section 614(f), and as 
    these procedures have been used for many years by all public agencies 
    regarding parent participation in IEP meetings. In many, if not most 
    instances, placement decisions will be made as a part of IEP meetings, 
    as is already the case in many jurisdictions.
        Proposed Sec. 300.502 (a), (c), and (d) would contain, with minor 
    modifications, the current regulatory provisions setting out the 
    general requirements regarding independent educational evaluations, 
    parent-initiated evaluations, and requests for evaluations by hearing 
    officers, consistent with the statutory provision of section 615(b)(1). 
    Proposed paragraph (b) would restate the current regulatory provision 
    concerning the parent's right to evaluation at public expense to make 
    clear that if a parent requests an independent educational evaluation, 
    the agency, without unnecessary delay, must either initiate a due 
    process hearing to show that its evaluation is appropriate, or insure 
    that an independent educational evaluation is provided at public 
    expense, reflecting the Secretary's interpretation that a public agency 
    must take action to respond to a parent's request for an independent 
    educational evaluation, and may not just refuse to respond. Paragraph 
    (e) of this proposed section would restate, with modifications, the 
    current regulatory provision concerning agency criteria for 
    evaluations. The Secretary proposes to add a new paragraph (e)(2) to 
    clarify that other than the agency's criteria for an agency-initiated 
    evaluation, the public agency may not impose conditions or timelines on 
    a parent's right to obtain an independent educational evaluation at 
    public expense. This proposal reflects the Department's analysis of the 
    statutory provision that an independent educational evaluation must be 
    available if the parent objects to an evaluation that a school district 
    is using. A note following this section would explain that a public 
    agency may not impose conditions on obtaining an independent 
    educational evaluation other than the agency criteria for the agency's 
    own evaluations, but must either timely provide the independent 
    educational evaluation at public expense or initiate a due process 
    hearing. A second note would be added to encourage public agencies to 
    make information about the agency's criteria for evaluations known to 
    the public, so that parents who disagree with an agency evaluation will 
    know what standards an independent evaluation should meet. A third note 
    would explain how agency criteria apply to an independent educational 
    evaluation.
        Proposed Sec. 300.503(a)(1) would repeat, unchanged, the current 
    regulatory provision concerning the basic obligation to provide prior 
    written notice, based on the statutory requirements for prior notice. 
    Proposed paragraph (a)(2) would be added to clarify that an agency may 
    provide the prior written notice at the same time that it requests 
    parent consent, if an action proposed by a public agency requires 
    parent consent and prior written notice, reflecting the Secretary's 
    interpretation that these activities are closely related. The new 
    statutory requirements concerning the content of prior written notice 
    from section 615(c) would be addressed in proposed Sec. 300.503(b) (1) 
    through (7). These new content requirements are different from, and 
    would replace, the provision in current regulations on the content of 
    prior written notice. The Secretary proposes to add to this paragraph a 
    requirement that the prior written notice include a statement informing 
    parents about the State complaint procedures, including a description 
    of how to file a complaint and the timelines under those procedures. 
    The Secretary believes that insuring that parents know about these 
    procedures, which are an alternative mechanism to due process, should 
    help, in conjunction with the new statutory provisions regarding 
    mediation that are also contained in these proposed regulations, to 
    reduce the number of disagreements between parents and school districts 
    that go to due process. Based on the requirement of section 615(b) (3) 
    and (4) of the Act, paragraph (c) of proposed Sec. 300.503 would 
    maintain the provision from current regulations concerning providing 
    this notice in language understandable to the general public and in the 
    native language or other mode of communication used by the parent, 
    unless it is clearly not feasible to do so.
        Proposed Sec. 300.504 would contain the new statutory provisions 
    concerning procedural safeguards notice, including in paragraph (a) 
    when that notice must be provided, and in paragraph (b) what content it 
    must include, as provided in section 615(d) of the Act. Paragraph (c) 
    of this section would address the statutory requirements, also from 
    section 615(d), that this notice be in language understandable to the 
    general public and in the native language or other mode of 
    communication used by the parent unless clearly not feasible to do so, 
    in the same way as similar requirements would be treated regarding 
    prior written notice.
        Changes were made in how the statute addresses parent consent (in 
    sections 614 (a)(1)(C) and (c)(3)), and so the existing regulatory 
    provision would be revised in the following ways at proposed 
    Sec. 300.505. Paragraph (a) would be revised in recognition of the new 
    statutory provision concerning parent consent for reevaluations. The 
    Secretary proposes to read this provision to require parent consent 
    before conducting a new test as a part of a reevaluation. The statute 
    now discusses evaluation and reevaluation as including reviewing 
    existing data and, if appropriate, conducting new assessments or tests 
    when new information is needed. The Secretary does not believe that in 
    adding a parent right to consent to reevaluations that Congress 
    intended to require school
    
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    personnel to obtain parent consent before reviewing existing data about 
    a child. Therefore, the proposed regulation would make clear that as to 
    reevaluations, parent consent is needed only before conducting a new 
    test as part of that reevaluation. Paragraph (b) of this section would 
    reflect the statutory requirement of section 641(a)(1)(C)(ii) regarding 
    parent refusals to consent.
        Paragraph (c)(1) of this proposed section would reflect the 
    statutory requirement of section 614(c)(3) of the Act that parent 
    consent need not be obtained for reevaluation if the public agency can 
    demonstrate that it has taken reasonable measures to obtain that 
    consent, and the parent fails to respond. In paragraph (c)(2) of this 
    section the Secretary proposes to describe the demonstration of 
    ``reasonable measures'' as procedures consistent with those required to 
    demonstrate attempts to involve a parent in an IEP meeting. Those 
    procedures, which are unchanged from the current regulations, would be 
    in proposed Sec. 300.345(d) (1) and (2). Proposed paragraphs (d) and 
    (e) of this section would restate current regulatory provisions 
    concerning additional State consent requirements and a limitation on 
    using parent consent for a Part B service or activity as a condition on 
    other benefits to the parent or child. Note 1 following the consent 
    provision in the current regulations would be removed as unnecessary. 
    Note 2 from current regulations would be shortened and revised 
    consistent with the proposed regulatory changes and renumbered as Note 
    1. Note 3 in current regulations would be renumbered as Note 2 and a 
    new Note 3 would be added addressing agency choices when a parent 
    refuses to consent to a reevaluation.
        Proposed Sec. 300.506 would reflect the new statutory provisions of 
    section 615(e) of the Act concerning mediation in paragraphs (a), (b), 
    and (d)(1), which set forth the general responsibility to establish and 
    implement mediation procedures, specific requirements regarding the 
    mediation process, and the statutory provision concerning requiring 
    parents who elect not to use mediation to meet with a disinterested 
    party who would explain the benefits of mediation and encourage its 
    use. In paragraph (c) the Secretary proposes to clarify the requirement 
    that mediation be conducted by an impartial mediator by specifying that 
    a mediator may not be an employee of an LEA or State agency acting as 
    an LEA or an SEA that is providing direct services to the child who is 
    the subject of the mediation and must not have a personal or 
    professional conflict of interest. This position reflects the 
    explanation of this statutory provision in congressional committees' 
    reports. Given Congress' interest in encouraging the use of mediation, 
    it is unlikely that it would have considered any person not meeting 
    basic standards of impartiality to be an acceptable mediator. The 
    Secretary believes that these standards will encourage the use of 
    mediation by ensuring parties to a dispute the availability of an 
    objective third party to mediate disputes. The Secretary proposes to 
    add, in paragraph (d)(2), a clarification that a public agency may not 
    deny or delay a parent's right to a due process hearing based on a 
    parent's failure to participate in the meeting described in proposed 
    paragraph (d)(1). This proposal is made in recognition of the statutory 
    provision of section 615(e)(2)(A)(ii) which provides that the mediation 
    process not be used to deny or delay a parent's right to due process. A 
    note following this section would quote language from the House 
    Committee Report, noting the Committee's intention that if a mediator 
    is not selected at random from the list maintained by the SEA, both the 
    parents and the agency must be involved in selecting the mediator and 
    in agreement about the selection. A second note would note the 
    discussion of House Committee Report's the confidentiality provisions 
    regarding mediation.
        Proposed Sec. 300.507(a)(1) would set out the general provision, 
    from section 615(b)(6) of the Act, regarding the right of parents and 
    public agencies to initiate a due process hearing on any matter 
    relating to the identification, evaluation, educational placement or 
    provision of FAPE to a child. In paragraph (a)(2), the Secretary would 
    interpret the requirement of section 615(e)(1) that mediation be 
    available whenever a hearing is requested, as requiring that parents be 
    notified of the availability of mediation whenever a due process 
    hearing is initiated. Paragraph (a)(3) would restate the requirement 
    from the current regulations that the public agency inform the parent 
    of free or low-cost legal and other relevant services if the parents 
    request it, and whenever a due process hearing is initiated. Paragraph 
    (b) of this proposed section would reflect the statutory requirement of 
    section 615(f)(1) of the Act that the hearing be conducted by the SEA 
    or public agency directly responsible for the education of the child. 
    Paragraph (c) of this proposed section would reflect the new statutory 
    requirements of section 615(b) (7) and (8) concerning the notice that a 
    parent is required to provide to a public agency in a request for a due 
    process hearing, and the model form that must be developed by the SEA 
    to assist parents in filing a request for due process that includes the 
    information required in proposed paragraphs (c) (1) and (2). In 
    paragraph (c)(4) the Secretary proposes to clarify that failure to 
    provide the notice specified in paragraphs (c) (1) and (2) cannot be 
    used to deny or delay a parent's right to a due process hearing, as the 
    Secretary believes that Congress did not intend that failure of a 
    parent to provide this notice would prevent them from using procedures 
    necessary to protect their child's right to FAPE. A note following this 
    section would be added to clarify that a public agency may not deny a 
    parent's request for due process, even if it believes that the issues 
    raised are not new, and that this determination must be made by a 
    hearing officer. A second note would quote the House Committee Report 
    noting that a consequence of failure to provide this notice may be a 
    possible reduction in attorneys' fees, noting that the provision is 
    designed to encourage early resolution of disputes and foster 
    partnerships between parents and school districts.
        Proposed Sec. 300.508 would maintain the current regulatory 
    requirements concerning impartial hearing officers, consistent with the 
    requirement of section 615(f)(3).
        Proposed Sec. 300.509 would add, to existing regulatory provisions 
    concerning rights of all parties to a due process hearing, the new 
    statutory requirement of section 615(f)(2) of the Act regarding 
    disclosure, at least 5 business days prior to a hearing, of all 
    evaluations and recommendations based on those evaluations that have 
    been completed by that date and that a party intends to introduce at 
    the hearing. This provision would be in addition to the existing 
    regulatory requirement of disclosure of any evidence to be introduced 
    at the hearing at least 5 days before the hearing. The provisions from 
    current regulations concerning the parties' rights to obtain a verbatim 
    record of the hearing and the findings of fact and decisions of the 
    hearing officer would be modified consistent with statutory changes in 
    section 615(h) (3) and (4) of the Act, which give parents the right to 
    choose either a written or electronic version of these documents. 
    Paragraph (c)(1) of this proposed section would maintain the existing 
    regulatory provision concerning parents' rights to have the child who 
    is the subject of the hearing present, and to open the hearing to the 
    public. Paragraph (c)(2) would specify that the record of the hearing 
    and the findings of fact and decisions of
    
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    hearings must be provided to parents at no cost. This reflects the 
    Department's longstanding interpretation that parents must have access 
    to copies of records of hearings and findings of fact and decisions at 
    no cost so that the right to appeal due process hearing decisions in 
    order to protect their child's right to FAPE is not foreclosed. 
    Proposed paragraph (d) of this section would maintain the current 
    regulatory provision requiring public agencies, after deleting 
    personally identifiable information, to transmit findings and decisions 
    of due process hearings to the State advisory panel and make them 
    available to the public, consistent with section 615(h)(4).
        Proposed Sec. 300.510(a) maintains, with minor changes, the current 
    regulatory provision regarding finality of decisions, consistent with 
    section 615(i)(1)(A). Proposed Sec. 300.510 (b), (c), and (d), 
    reflecting the statutory requirements, maintain current regulatory 
    provisions concerning the State level review procedure, including the 
    reviewing official's duties; the responsibility, after deleting 
    personally identifiable information, to make findings and decisions in 
    reviews available to the public and transmit them to the State advisory 
    panel; and finality of review decisions. The notes following the 
    provision on these subjects in current regulations would be retained.
        Proposed Secs. 300.511 and 300.512(a) would maintain the current 
    regulatory provisions concerning the timelines for due process hearings 
    and State review proceedings and the right of an aggrieved party to 
    bring a civil action. Proposed Sec. 300.512 (b) and (c) would add the 
    statutory requirements of section 615 (i)(2) and (i)(3)(A) of the Act 
    regarding the duties of the court in reviewing a due process decision 
    or State level review and the jurisdiction of the Federal district 
    courts. Proposed Sec. 300.511(d) would add to the regulation the 
    statutory rule of construction of section 615(l) of the Act regarding 
    the applicability of other laws such as the Constitution, the Americans 
    with Disabilities Act of 1990, and title V of the Rehabilitation Act of 
    1973, to actions seeking relief that is also available under section 
    615 of the Act.
        Proposed Sec. 300.513(a) would maintain the current regulatory 
    provision concerning attorneys' fees, reflecting the requirements of 
    section 615(i)(3)(B)-(G). The Secretary proposes to add a new paragraph 
    (b) to specify that funds provided under Part B of the Act may not be 
    used to pay attorneys' fees awarded under the Act. The Secretary does 
    not believe that funds awarded under the Act for special education and 
    related services should be used to pay attorneys' fees because it would 
    divert limited Federal resources from direct services. A note would be 
    added following this section to explain that States may permit hearing 
    officers to award attorneys' fees to prevailing parents.
        Proposed Sec. 300.514(a) would revise the current regulation 
    consistent with the new statutory provision in section 615(j), which 
    adds, as an explicit exception to the ``pendency'' provision, the 
    provisions of section 615(k)(7) of the Act. Proposed paragraph (b) of 
    this section would retain the current regulatory provision concerning 
    due process complaints involving an initial admission to public school. 
    The Secretary proposes to add a new paragraph (c) to clarify that if a 
    hearing officer in a due process hearing or a review official in a 
    State level review agrees with the child's parents that a change of 
    placement is appropriate, that placement must be treated as an 
    agreement between the State and local agency and the parents for 
    purposes of determining the child's current placement during subsequent 
    appeals. The pendency provision is designed as a protection to be used 
    by parents of children with disabilities when there is a dispute 
    between the parents and school district about the identification, 
    evaluation, or placement of the child, or about any matter related to 
    the provision of a free appropriate public education to the child. When 
    parents are in agreement with the decision reached in a due process 
    hearing or appeal, the pendency provision should not be invoked to 
    prevent the implementation of that decision. The note from current 
    regulations concerning children who are endangering themselves or 
    others would be retained.
        Proposed Sec. 300.515 would maintain, without change, the current 
    regulatory provisions concerning surrogate parents, consistent with the 
    provisions of section 615(b)(2) of the Act.
        Proposed Sec. 300.517 would add the new statutory provision 
    regarding transfer of parent rights at the age of majority from section 
    615(m) of the Act. The Secretary would interpret this to clarify that 
    whenever an agency transfers rights the agency must notify both the 
    individual and the parents of the transfer, consistent with basic 
    standards of due process. With regard to the permissive transfer of 
    rights to individuals who are in correctional institutions, the 
    reference to Federal correctional facilities would be removed, as 
    States do not have an obligation to provide special education and 
    related services under the Act to individuals in Federal facilities. 
    Minor changes for the sake of clarity, that are not intended to affect 
    the substance, would be made to the provision in paragraph (b) 
    regarding a ``special rule.''
    Discipline Procedures
        Proposed Sec. 300.520 would incorporate the provisions of section 
    615(k)(1) of the Act regarding the ability of school personnel to 
    remove a child with a disability from his or her current placement for 
    not more than 10 school days, and the ability of school personnel to 
    place a child with a disability in an interim alternative educational 
    setting for not more than 45 days, if the child carries a weapon to 
    school or a school function or knowingly possesses or uses illegal 
    drugs or sells or solicits the sale of a controlled substance at school 
    or a school function. These provisions would be incorporated in 
    paragraph (a) of this proposed section.
        Section 615(k)(1) also requires an IEP meeting to review a child's 
    behavioral intervention plan or to develop an assessment plan to 
    address that behavior. The Secretary proposes to adopt these 
    requirements in paragraph (b) with the following clarifications: (1) 
    The statute's provision that the IEP team meeting occur within 10 days 
    of taking a disciplinary action would specify that this meeting occur 
    within 10 business days of the disciplinary action rather than 10 
    calendar days; and (2) if the child does not have a behavioral 
    intervention plan, the purpose of the IEP meeting is to develop an 
    assessment plan and appropriate behavioral interventions to address 
    that behavior. The Secretary believes that the business day 
    interpretation would allow school personnel an adequate amount of time 
    to convene the meeting, while ensuring that it occur within the window 
    of time during which a child may be removed from the regular placement 
    under proposed Sec. 300.520(a)(1). The Secretary believes that the 
    purpose of the IEP meeting should be not just development of an 
    assessment plan, but also development of appropriate behavioral 
    interventions so that some behavioral interventions can be instituted 
    without delay. The Secretary also proposes to specify, in paragraph 
    (c), that if a child with a disability is removed from his or her 
    current educational placement for 10 school days or less in a given 
    school year, and no further removal or disciplinary action is 
    contemplated, the IEP team review of the child's behavioral 
    interventions, or need for them, need not be conducted. In light of the 
    legislative history of the IDEA Amendments of 1997, the Secretary
    
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    does not believe that these procedures were contemplated if children 
    with disabilities would only be out of their regular educational 
    placements for short periods of time in a given school year; that is, 
    for less than 10 school days in a school year.
        Paragraph (d) of proposed Sec. 300.520 would incorporate the 
    statutory definitions of ``controlled substance,'' ``illegal drug,'' 
    and ``weapon'' from section 615(k)(10) (A), (B), and (D) of the Act. A 
    note following this section would explain the Department's longstanding 
    interpretation that removing a child from his or her current 
    educational placement for no more than 10 school days does not 
    constitute a change in placement under the Part B regulations. However, 
    a series of short-term suspensions totaling more than 10 days could 
    amount to a change of placement based on the circumstances of the 
    individual case. A second note following this section would encourage 
    public agencies whenever removing a child with disabilities from the 
    regular placement to review as soon as possible the circumstances 
    surrounding the child's removal and consider whether the child was 
    receiving services in accordance with the child's IEP and whether the 
    child's behavior could be addressed through minor classroom or program 
    adjustments or whether the child's IEP team should be reconvened to 
    address changes in that document.
        Proposed Sec. 300.521 reflects the provisions of section 615(k)(2) 
    of the Act regarding the authority of a hearing officer to place a 
    child with a disability in an interim alternative educational setting 
    for not more than 45 days if the hearing officer determines that the 
    public agency has demonstrated by substantial evidence that maintaining 
    the child in the child's current educational placement is likely to 
    result in injury to the child or to others, and considers the 
    appropriateness of the child's current placement, whether the agency 
    has made reasonable efforts to minimize the risk of harm, including the 
    use of supplementary aids and services, and then determines that the 
    interim alternative educational setting meets certain requirements. The 
    Secretary is proposing to clarify how this determination is made by 
    specifying that the determination is made by a hearing officer in an 
    expedited due process hearing. The Secretary believes that a due 
    process hearing was contemplated by Congress in view of the requirement 
    that the agency demonstrate the likely risk of harm by ``substantial 
    evidence'', which is defined at section 615(k)(10) as beyond a 
    preponderance of the evidence. Paragraph (e) of this section would 
    include the statutory definition of this term.
        Proposed Sec. 300.522 would incorporate the section 615(k)(3) 
    requirements that the alternative educational setting be determined by 
    the IEP team and that it be selected so as to enable the child to 
    continue to participate in the general curriculum, although in another 
    setting, and to continue to receive those services and modifications, 
    including those described in the child's current IEP, that will enable 
    the child to meet the goals set out in that IEP, and include services 
    and modifications designed to address the behavior, so that it does not 
    recur. This statutory language would be interpreted only as necessary 
    to make clear that, consistent with proposed Secs. 300.520 and 300.121, 
    these requirements would have to be met if a child is removed from his 
    or her current educational placement for more than 10 school days in a 
    school year.
        Proposed Sec. 300.523 would reflect the provisions of section 
    615(k)(4) concerning when and how a manifestation determination review 
    is conducted with the following modifications: (1) a paragraph (b) 
    would include the Secretary's proposal that if a child with 
    disabilities is removed from the child's current educational placement 
    for 10 school days or less in a given school year, and no further 
    disciplinary action is contemplated, the manifestation review need not 
    be conducted; (2) a paragraph (e) would clarify that if the IEP team 
    determines that any of the standards described in the statute are not 
    met, the team must consider the child's behavior to be a manifestation 
    of the child's disability; and (3) a paragraph (f) would make clear 
    that the manifestation review may be conducted at the same meeting in 
    which the behavioral review of proposed Sec. 300.520(b) is done. The 
    interpretation in paragraph (e) on how the manifestation determination 
    is made, using on the standards described in the statute, is based on 
    the explanation of this decision process in the congressional committee 
    reports. A note following this section would quote the language of the 
    House Committee Report on how the manifestation determination is made. 
    A second note would explain that if the decision is that the behavior 
    is a manifestation of the child's disability, the LEA must take steps 
    to remedy any deficiencies found during that review in the child's IEP 
    or placement or in their implementation. Often these steps will enable 
    a child whose behavior is a manifestation of his or her disability to 
    return to the child's current educational placement before the 
    expiration of the 45-day period.
        Proposed Sec. 300.524 (a) and (b) would reflect the provisions of 
    section 615(k)(5) regarding behavior that is not a manifestation of a 
    child's disability. Proposed paragraph (c) would clarify that the 
    requirements of the ``pendency'' provision apply if a parent requests a 
    hearing to appeal a decision that a child's behavior is not a 
    manifestation of the child's disability. Section 615(j) of the Act 
    provides that the only exceptions to the ``pendency'' rule are those 
    specified in section 615(k)(7) of the Act, which concerns placement 
    during parent appeals of 45-day interim alternative educational 
    placements. A note following this section would further explain this 
    issue.
        Section 504 of the Rehabilitation Act of 1973 prohibits 
    discrimination on the basis of disability, including disciplining 
    children with disabilities for behavior that is a manifestation of 
    their disability. For example, disciplining a child with a seizure 
    disorder for behavior that results from that disability would violate 
    Section 504. The Secretary invites comment on whether further 
    clarification of this point should be provided in these regulations.
        Proposed Sec. 300.525 would reflect the requirements of section 
    615(k)(6) regarding parent appeals of manifestation determinations or 
    any decision regarding placement, including the requirement for an 
    expedited hearing, and the standards used by the hearing officer in 
    reviewing these decisions.
        Proposed Sec. 300.526 would adopt the requirements of section 
    615(k)(7) involving placement if a parent requests a hearing to 
    challenge the interim alternative educational setting or the 
    manifestation determination, including the requirement that the child 
    remain in the interim alternative educational setting until the 
    decision of the hearing officer or the expiration of the 45-day period, 
    whichever comes first, the requirement that an LEA may request an 
    expedited due process hearing to seek to demonstrate to the hearing 
    officer that it would be dangerous to return the child to his of her 
    current educational placement, and the standards that the hearing 
    officer uses in reaching a decision. Proposed paragraph (c)(3) would 
    clarify that these placements would be for a duration of not more than 
    45 days, as the 45-day limit is one of the standards in section 
    615(k)(2) referred to in section 615(k)(7)(C). A note following this 
    section would explain that if the LEA maintains that the child is still 
    dangerous at the
    
    [[Page 55048]]
    
    expiration of the 45 days and the issue has not been resolved through 
    due process, the LEA could seek a subsequent expedited hearing on the 
    issue of dangerousness.
        Proposed Sec. 300.527 would incorporate the statutory requirements 
    of section 615(k)(8) regarding the application of these rules to 
    children not yet determined eligible for special education and related 
    services, with certain clarifications. Paragraph (b)(1) would clarify 
    that oral communication from the child's parents would constitute a 
    basis for knowledge only if the parent is illiterate in English or has 
    a disability that prevents a written statement. Proposed paragraphs 
    (c)(2)(ii) and (iii) would clarify that if the parents have requested 
    an evaluation, the child remains in the educational placement 
    determined by school authorities until the evaluation is completed, and 
    that if the result of the evaluation is that the child is a child with 
    a disability, the agency must provide special education and related 
    services in accordance with the provisions of Part B, including the 
    requirements of proposed Secs. 300.520-300.529 and section 612(a)(1)(A) 
    of the Act.
        In proposed Sec. 300.528, the Secretary proposes to specify what an 
    expedited due process hearing must entail, including time frames and 
    hearing procedures, the qualifications of hearing officers, and appeal 
    rights. These provisions are based on the Secretary's belief that all 
    expedited hearings under these discipline procedures should result in 
    decisions within a very short period of time in order to protect the 
    interests of both schools and children with disabilities, and that a 
    10-business-day limit would allow these hearings to result in decisions 
    before the expiration of a potential 10-school-day removal of a child 
    from the regular placement. The Secretary believes that requiring that 
    due process hearing officers under these procedures meet the same 
    requirements that apply to hearing officers under other due process 
    procedures under the Act and that the hearings meet the same basic 
    standards that apply to other due process hearings will ensure that 
    these proceeding meet basic standards of due process, and are perceived 
    as fair, while allowing some flexibility by allowing States to adjust 
    their own procedural rules to accommodate these very swift hearings.
        Proposed Sec. 300.529 incorporates the provisions of section 
    615(k)(9) of the Act regarding reporting crimes committed by a child 
    with a disability to appropriate authorities and transmitting copies of 
    the special education and disciplinary records of the child to the 
    authorities to whom the agency reports the crime.
    Procedures for Evaluation and Determinations of Eligibility
        Proposed Sec. 300.530 would reflect section 612(a)(7), which gives 
    general responsibility to the SEA to ensure that each public agency 
    establishes and implements evaluation procedures that meet the 
    requirements of the Act. Proposed Sec. 300.531 incorporates the 
    requirement of section 614(a)(1) that each public agency conduct a full 
    and complete initial evaluation before initiating the provision of 
    special education and related services to a child with a disability. 
    Proposed Sec. 300.532 incorporates the requirements of section 614(b) 
    (2) and (3) and section 612(a)(6)(B) with the requirements of current 
    regulations that a variety of assessment tools and strategies must be 
    used to gather information about the child; that evaluation materials 
    include those tailored to assess specific areas of educational need and 
    not merely designed to provide a single general intelligence quotient; 
    and that tests must be selected and administered so as to best insure 
    that the test results accurately reflect the child's aptitude or 
    achievement level or whatever the test purports to measure, rather than 
    the child's impaired sensory, manual, or speaking skills. Three notes 
    following proposed Sec. 300.532 would explain how a public agency meets 
    its obligation to properly evaluate a child who is limited English 
    proficient and suspected of having a disability.
        Proposed Sec. 300.533 would reflect the provisions of section 
    614(c) (1), (2), and (4) of the Act regarding review of existing 
    evaluation data and determinations of whether more data is needed. 
    Proposed Sec. 300.534 would incorporate the requirements of section 614 
    (b) (4) and (5) and (c)(5) of the Act regarding determinations of 
    eligibility.
        Proposed Sec. 300.535 would maintain from the current regulations 
    the procedures for determining eligibility.
        Proposed Sec. 300.536 would reflect the statutory provisions of 
    section 614(a)(2) concerning reevaluation and the existing regulatory 
    provision regarding review of IEPs, with minor modifications.
    Additional Procedures for Evaluating Children with Specific Learning 
    Disabilities
        Proposed Sec. 300.540 would be changed from the current regulation 
    only as necessary to reflect the new requirements as described, 
    concerning the composition of the teams of individuals who make 
    determinations about eligibility. Proposed Secs. 300.541 and 300.542, 
    regarding the criteria for determining the existence of a specific 
    learning disability and observation of a child suspected of having a 
    specific learning disability, would be unchanged from current 
    regulations. Proposed Sec. 300.543, concerning the written report, 
    would be changed from current regulations only to make clear that for a 
    child suspected of having a specific learning disability, this report 
    satisfies the requirement for documentation of the determination of 
    eligibility as described with reference to proposed Sec. 300.534(a).
        The Secretary intends to review carefully over the next several 
    years the additional procedures for evaluating children suspected of 
    having a specific learning disability contained in proposed 
    Secs. 300.540-300.543 in light of research, expert opinion and 
    practical knowledge of identifying children with a specific learning 
    disability with the purpose of considering whether legislative 
    proposals should be advanced for revising these procedures.
    Least Restrictive Environment
        Proposed Secs. 300.550-300.556 are taken from current regulations, 
    with the exceptions noted. These provisions interpret the statutory 
    provision regarding placement in the least restrictive environment in 
    Section 612(a)(5)(A), which is substantively the same as prior law. A 
    minor change to proposed Sec. 300.550(a) would be made to reflect the 
    new organization of the statute around State eligibility requirements, 
    and a conforming change to the note following proposed Sec. 300.552 to 
    update a reference to another section of this regulation. A note 
    following proposed Sec. 300.551 would be added explaining that home 
    instruction is generally only appropriate for children who are 
    medically fragile and those who are unable to participate with 
    nondisabled children in any activities. Section 300.552 from current 
    regulations would be revised to incorporate the provisions of current 
    regulations in Sec. 300.533(a) (3) and (4) regarding how the placement 
    decision is made. A note following this section would be added to 
    explain that the group of persons making the placement decision may 
    also serve as the child's IEP team, as long as all appropriate IEP team 
    members are included. Another note would be added suggesting that if 
    IEP teams appropriately consider and include in IEPs positive 
    behavioral interventions and supplementary aids and services many 
    children who would otherwise be disruptive will be able to
    
    [[Page 55049]]
    
    participate in regular education classrooms.
    Confidentiality of Information
        With the following exceptions, proposed Secs. 300.560-300.575 and 
    Sec. 300.577 retain the provisions of current regulations on 
    confidentiality of information, with only very minor, nonsubstantive 
    changes. These provisions interpret the statutory provision regarding 
    confidentiality in sections 612(a)(8) and 617(c). A new note would be 
    added as Note 2 following proposed Sec. 300.574 explaining the 
    relationship between these procedures and the new requirements 
    concerning transfer of rights to students at the age of majority, as 
    discussed under proposed Sec. 300.517. A new regulation would be added 
    (proposed Sec. 300.576) reflecting the statutory authority from section 
    613(j) of the Act for SEAs to require LEAs to include in records of a 
    child with a disability a statement of current or previous disciplinary 
    action, and transmit that statement to the same extent that 
    disciplinary information is included in, and transmitted with, records 
    of nondisabled children, including a description of information 
    relevant to the discipline. The statute also requires that if a State 
    adopts such a policy and the child transfers from one school to 
    another, any transmission of the child's records must include both the 
    child's current IEP and any statement of current or previous 
    disciplinary action taken against the child.
    Department Procedures
        Proposed Secs. 300.580-300.586 largely restate existing regulatory 
    provisions concerning Department procedures for State plan disapproval 
    as Department procedures for determinations of State ineligibility, in 
    light of the restructuring of the Act to eliminate the State plan. 
    Reflecting the requirement in section 612(d) of the Act, a new proposed 
    Sec. 300.580 would state that if the Secretary determines a State is 
    eligible to receive a grant, the Secretary notifies the State.
        A new Sec. 300.587 would be added to incorporate the statutory 
    provisions of section 616(a) of the Act regarding enforcement by the 
    Department if a SEA or LEA fails to comply with Part B of the Act or 
    its regulations. This section would incorporate the types of 
    enforcement actions available to the Department--withholding payments 
    in whole or in part, and referral to the Department of Justice, 
    mentioned in section 616(a), and taking any other enforcement action 
    authorized by law, such as other actions authorized under 20 U.S.C. 
    1234. The Secretary proposes to regulate to clarify the type of notice 
    and hearing provided before withholding and referral for enforcement 
    action because the type of hearing appropriate before announcement of 
    an enforcement action that itself involves an adversarial hearing 
    logically will be different than the adversarial hearing before a 
    withholding or eligibility decision. Proposed paragraph (e) of this 
    section would address enforcement in situations in which a State has 
    assigned responsibility for children with disabilities who are 
    convicted as adults under State law and incarcerated in adult prisons 
    to an agency other than the SEA.
        In proposed Sec. 300.589, the Secretary proposes to revise the 
    current regulatory provision regarding the statutory requirement in 
    section 612(a)(18)(C) permitting a waiver, in whole or in part, of the 
    supplement, not supplant rule for use of funds provided under Part B if 
    the State demonstrates by clear and convincing evidence that all 
    children with disabilities in the State have FAPE available to them, 
    and the Secretary concurs with the evidence provided by the State. 
    Section 612(a)(19)(C)(ii) now also provides that the Secretary may 
    waive the new maintenance of State financial support requirement of 
    section 612(a)(19)(A) if the Secretary determines that the State meets 
    the standard described in section 612(a)(18)(C). Section 612(a)(19)(E) 
    directs the Secretary to issue proposed regulations establishing 
    procedures, including objective criteria and consideration of the 
    results of compliance reviews of the State conducted by the Department, 
    within 6 months of the enactment of the IDEA Amendments of 1997 (or 
    December 4, 1997) and final regulations on this topic within one year 
    of enactment (or June 4, 1998). The Secretary proposes to implement 
    these requirements by providing that a State wishing to request a 
    waiver must submit: (1) an assurance that FAPE is and will remain 
    available to all children with disabilities in the State; (2) the 
    evidence that the State wishes the Secretary to consider that details 
    the basis on which the State has concluded that FAPE is available to 
    all children with disabilities in the State and State procedures 
    regarding child find, monitoring, State complaint handling and due 
    process hearings; (3) a summary of all State and Federal monitoring 
    reports and hearing decisions for the prior three years that include 
    any finding that FAPE was not available and evidence that FAPE is now 
    available to all children addressed in those reports and decisions; and 
    (4) evidence that the State in reaching its conclusion that FAPE is 
    available to all children with disabilities in the State consulted with 
    interested organizations and parents in the State and a summary of that 
    input. If the Secretary determines that the State has made a prima 
    facie showing that FAPE is available to all children with disabilities 
    in the State, the Secretary conducts a public hearing on whether FAPE 
    is and will be available to all children with disabilities in the 
    State. If the Secretary concludes that the evidence clearly and 
    convincingly demonstrates that FAPE is and will be available to all 
    children with disabilities in the State, the Secretary provides a 
    waiver for a one-year period. The Secretary also proposes that a State 
    use these same procedures to obtain a waiver in subsequent years. The 
    Secretary believes that these procedures would appropriately allow 
    States to demonstrate that all children with disabilities in the State 
    are, and will be, appropriately served so that a waiver could be 
    granted without violating the rights of children with disabilities.
    
    Subpart F--State Administration
    
    General
        Proposed Sec. 300.600 (a) through (c) would retain, with minor 
    nonsubstantive changes, the provisions of current regulations 
    concerning SEA responsibility for all educational programs for children 
    with disabilities in the State, consistent with section 612(a)(11). 
    Paragraph (d) of this section would add the new provision from section 
    612(a)(11)(C) of the Act which permits the Governor (or other 
    authorized individual under State law), consistent with State law, to 
    assign to another public agency of the State the responsibility of 
    ensuring that the requirements of Part B of the Act are met with 
    respect to children with disabilities who are convicted as adults under 
    State law and incarcerated in adult prisons. The note following this 
    section in current regulations would be maintained.
        Proposed Sec. 300.601 would retain, with only minor, nonsubstantive 
    revisions, the current regulation specifying that Part B of the Act not 
    be construed to permit a State to reduce medical and other assistance 
    available to children with disabilities or alter the eligibility of a 
    child with a disability to receive services that are also part of FAPE, 
    based on the statutory provision at section 612(e).
    
    [[Page 55050]]
    
        Proposed Sec. 300.602 would reflect the new statutory cap on the 
    amount of funds that States can retain for administration and other 
    State-level activities. Section 611(f)(1) provides that each year the 
    Secretary will determine and report to each State an amount that is 25 
    percent of the amount the State received under section 611 for fiscal 
    year 1997 cumulatively adjusted annually by the lesser of the 
    percentage increase of the State's allocation from the prior year's 
    allocation or the rate of inflation, which will be the maximum amount 
    that the State can retain for these purposes.
    Use of Funds
        Section 611(f)(2) specifies that a State can use for State 
    administration of the Part B program, including section 619, not more 
    than twenty percent of the amount that the State may retain, or 
    $500,000 adjusted cumulatively for inflation, whichever is greater, and 
    that each outlying area can retain $35,000 for that purpose. This 
    provision is reflected in proposed Sec. 300.620.
        Proposed Sec. 300.621 would maintain the requirements of current 
    regulations on the allowable uses of funds retained by the State for 
    State administration, reflecting the Secretary's interpretation of 
    section 611(f)(2) of the Act. The Secretary believes that these 
    provisions adequately address the statutory purpose of these funds 
    while giving States reasonable flexibility in how they use these funds.
        Section 611(f)(4) of the Act creates a new category of subgrants 
    that SEAs, under certain circumstances, will make to LEAs for capacity 
    building and improvement.
        Proposed Sec. 300.622 would reflect this new authority, including 
    the statutorily prescribed purposes of these subgrants to LEAs.
        Proposed Sec. 300.623 would describe the amount reserved for 
    capacity-building and improvement subgrants to LEAs, consistent with 
    the requirement of section 611(f)(4)(B) of the Act. A note would be 
    added following this section that would explain that the amount of 
    funds available for these capacity-building and improvement subgrants 
    to LEAs will vary year to year, and that in each year following a year 
    in which these subgrants are made, these funds become part of the 
    required flow-through subgrants to all LEAs.
        In proposed Sec. 300.624, the Secretary proposes to provide clear 
    authority for States to establish priorities to award capacity building 
    and improvement subgrants competitively or on a targeted basis because 
    the Secretary believes that this flexibility is necessary to enable 
    States to design these subgrants to suit State needs. A note following 
    this provision would recognize that the purpose of these subgrants is 
    to address particular needs that are not readily addressed through 
    formula assistance, and that SEAs can use these subgrants to promote 
    innovation, capacity building, and systemic improvement.
    State Advisory Panel
        Proposed Sec. 300.650 would retain the provisions of current 
    regulation concerning establishment of State advisory panels, 
    consistent with section 612(a)(21)(A) of the Act. A note would be added 
    to follow this section making clear that the State advisory panel 
    advises the State regarding the education of all children with 
    disabilities in the State, including in situations where the State has 
    divided State responsibility for eligible children with disabilities 
    who have been convicted as adults and are incarcerated in adult 
    prisons.
        Proposed Sec. 300.651 would reflect the new statutory membership 
    requirements for the State advisory panel, as provided in section 
    612(a)(21) (B) and (C), including a new statutory requirement that a 
    majority of the members of the panel must be individuals with 
    disabilities or parents of children with disabilities.
        Proposed Sec. 300.652 would reflect the duties of the advisory 
    panel, as specified in section 612(a)(21)(D) of the Act.
        Proposed Sec. 300.653 would maintain from the current regulations 
    the advisory panel procedures, representing the Secretary's 
    interpretation of reasonable rules for the operations of an advisory 
    panel under the Act.
    State Complaint Procedures
        The current Part 300 regulations establish a State complaint 
    mechanism that individuals, organizations, and other interested parties 
    can use to bring to the SEA's attention, for resolution, allegations 
    that a public agency is violating a requirement of Part B or its 
    implementing regulations. The Secretary views these State complaint 
    procedures as an important, less costly, less time consuming, and less 
    formal alternative to due process hearings and other dispute resolution 
    mechanisms through which disagreements under Part B and its regulations 
    may be resolved. Proposed Secs. 300.660-300.662 would retain these 
    State complaint procedures with the changes described.
        The Secretary proposes in proposed Sec. 300.660(b) to revise the 
    current regulation to require that States widely disseminate to parents 
    and others information about the State's complaint procedures. The 
    Secretary intends, through this requirement, in conjunction with the 
    provision in proposed Sec. 300.503(b)(8) that would require that prior 
    written notice to parents of children with disabilities include a 
    description of the State complaint procedures and how to file a 
    complaint, to ensure that persons interested in special education in a 
    State know that there are alternatives to resorting to due process 
    hearings that can be used to resolve disputes. A new note would be 
    added following this section that would explain that in resolving an 
    alleged denial of FAPE, an SEA may award compensatory education if 
    appropriate.
        Proposed Sec. 300.661 would retain from current regulation the 
    minimum State complaint procedures in current regulations, with one 
    exception. In this proposed regulation the Secretary proposes to delete 
    the provision regarding Secretarial review. This change reflects a 
    recommendation of the Department's Inspector General in his report of 
    August, 1997 on the utility and efficiency of the Secretarial review 
    process under the IDEA. In that report the Inspector General noted that 
    in the Secretarial review process the Department's limited resources 
    for implementation of the IDEA are being diverted to an activity that 
    is providing minimal benefits to children with disabilities or to the 
    program. The Secretary expects that removing the Secretarial review 
    provision will allow the Department to spend more of its time and 
    attention on evaluating States' systems for ensuring compliance with 
    program requirements, which will have benefit for all parties 
    interested in special education.
        Two new notes would be added following proposed Sec. 300.661. The 
    first would clarify that if a complaint is received that raises an 
    issue that is also the subject of a due process hearing, or multiple 
    issues, some of which are also the subject of a due process hearing, 
    the SEA must set aside the issues in due process until the end of the 
    hearing, but resolve the remaining issues in the complaint within the 
    60-day complaint time line. The second proposed note would explain that 
    if an issue raised in a complaint previously had been the subject of a 
    due process hearing, the hearing decision would be binding, and the SEA 
    would satisfy its obligation under these procedures by informing the 
    complainant that the hearing decision is binding as to that issue. The 
    note would also explain that the SEA would have to resolve an alleged 
    failure
    
    [[Page 55051]]
    
    to implement a due process hearing decision.
        The Secretary proposes in proposed Sec. 300.662 to maintain the 
    provisions of current regulation regarding filing a complaint, and add 
    a new paragraph (c) that would specify that complaints must be received 
    within one year of the alleged violation, unless a longer period is 
    reasonable because the violation is continuing or the complainant is 
    requesting compensatory services for a violation that occurred not more 
    than three years prior to the date the complaint is received by the 
    SEA. The Secretary believes that SEAs should not be required in the 
    future to use their resources to resolve complaints that do not involve 
    issues that are relevant to the current operation of the State's 
    special education program and that do not involve the possibility of 
    educational remedy for particular children. A note following this 
    section would be added to explain that SEAs must resolve complaints 
    that meet the complaint requirements, even if filed by an organization 
    or individual from another State.
    
    Subpart G--Allocation of Funds; Reports
    
    Allocations
        Proposed Sec. 300.700 would adopt the special definition of 
    ``State'' from section 611(h)(2) of the Act with regard to distribution 
    of funds provided under section 611 of the Act.
        Proposed Sec. 300.701 would describe the purpose of the grants 
    under section 611 of the Act and the maximum amount of those grants, as 
    provided in section 611(a) of the Act.
        Proposed Sec. 300.702 would incorporate the statutory definition of 
    ``average per-pupil expenditure in public elementary and secondary 
    schools in the United States'' from section 611(h)(1) of the Act.
        The IDEA Amendments of 1997 create a new formula for distribution 
    of funds under section 611 of the Act that is first applied when the 
    appropriation for section 611 of the Act is more than a certain trigger 
    amount--$4,924,672,200. Until that time, funds under section 611 will 
    continue to be distributed based on the formula under section 611 
    before enactment of the IDEA Amendments of 1997, with certain minor 
    changes stipulated in the statute.
        Proposed Sec. 300.703(a) would incorporate the general order of 
    distribution of funds, consistent with section 611(d)(1) of the Act, 
    which applies to both the interim and new formula distribution.
        Proposed Sec. 300.703(b) would incorporate the interim formula for 
    distribution among States, including the new statutory provision 
    permitting States to count the number of children receiving special 
    education and related services as of the last Friday in October or 
    December 1, at the State's discretion, as specified in section 
    611(d)(2) of the Act.
        Proposed Sec. 300.706 reflects the section 611(e) (1) and (2) 
    requirements for when the permanent formula takes effect, and 
    calculation of the ``base year'' amount for purposes of that new 
    formula.
        Proposed Sec. 300.707 would include the requirements of the new 
    formula from section 611(e)(3) of the Act, which specifies that funds 
    in excess of those distributed to a State in the base year are 
    allocated 85 percent on relative population of children aged 3 through 
    21 who are of the same age as children with disabilities for whom the 
    State ensures the availability of FAPE and 15 percent on the basis of 
    relative populations of children of those ages who are living in 
    poverty, based on the most recent data available and satisfactory to 
    the Secretary.
        Proposed Sec. 300.708 would specify the statutory floors and a cap 
    in the size of any State's increased allocation, as provided in section 
    611(e)(3) (B) and (C) of the Act. The requirements of section 
    611(e)(4), regarding what happens if the section 611 appropriation 
    decreases, would be incorporated in proposed Sec. 300.709.
        Proposed Sec. 300.710 would retain, with minor modifications, the 
    provisions of current regulations regarding allocations to a State in 
    which a bypass is implemented for private school children with 
    disabilities, consistent with section 612(f)(2) of the Act.
        Under section 611(g) of the Act, States will use a mechanism for 
    distributing the formula subgrant funds to LEAs that parallels the 
    distribution among States. This will include an interim formula, based 
    on the formula in the Act prior to the enactment of the IDEA Amendments 
    of 1997, and, after the 611 appropriation is greater than 
    $4,924,674,200, a new permanent procedure that, like the one at the 
    State level, allocates new funds 85 percent based on the relative 
    numbers of children enrolled in public and private elementary and 
    secondary schools in the agency's jurisdiction, and 15 percent in 
    accordance with the relative numbers of children living in poverty, as 
    determined by the SEA.
        Proposed Sec. 300.711 would reflect the requirement of section 
    611(g)(1) that funds not retained at the State level for State 
    administration and other State purposes, or distributed to LEAs as 
    capacity building and improvement subgrants, must be distributed to 
    LEAs and State agencies under the statutory formula that applies in 
    that year. Proposed Sec. 300.712 would set forth the statutory interim 
    formula and permanent procedure for distribution of funds to LEAs and 
    State agencies, reflecting section 611(g)(2) of the Act. A note 
    following this section would explain that States should use the best 
    data that is available to them on enrollment in public and private 
    schools, and that States have discretion in determining what data to 
    use regarding children living in poverty, and suggests some options for 
    poverty data. Proposed Sec. 300.713 would reflect the statutory 
    requirements of section 611(g)(3) concerning treatment of former 
    Chapter 1 State agencies in the distribution of funds. The Secretary 
    proposes minor adjustments to make the count date for children in these 
    agencies compatible with the count date used by the State for LEA 
    reporting because requiring a different count date in a State that 
    chooses to count in LEAs on the last Friday in October could result in 
    double counting.
        Proposed Sec. 300.714 would retain with minor nonsubstantive 
    changes the current regulatory provision concerning reallocation of LEA 
    funds to other LEAs. This provision reflects the requirements of 
    section 611(g)(4) of the Act.
        Proposed Secs. 300.715 and 300.716 reflect the statutory provisions 
    of sections 611(c) and 611(i) (1) (A) and (B) and (3) regarding 
    payments to the Secretary of the Interior for the education of Indian 
    children and for Indian children aged 3 through 5. The new statutory 
    provisions concerning grants to the outlying areas and freely 
    associated States of section 611(b) would be incorporated in proposed 
    Secs. 300.717 through 300.722.
    Reports
        Proposed Secs. 300.750 through 300.754 would retain, from the 
    current regulation, the provisions concerning report requirements for 
    the annual report of children served, the information required in the 
    report, certification, criteria for counting children, and other 
    responsibilities of the SEA regarding these reports. These provisions 
    are consistent with the statutory requirement in section 611(d) that 
    directs that funds appropriated for section 611 of the Act continue to 
    be allocated based on a child count as in effect before enactment of 
    the IDEA Amendments of 1997 for some time into the future. Minor 
    changes would be
    
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    made to reflect the fact that a child count for distribution of funds 
    will not be required under the permanent funding formula, and to 
    reflect the new State option on when the count will be conducted. A 
    reference to the old Chapter 1 handicapped program would be eliminated, 
    as that program no longer exists.
        Proposed Sec. 300.755 would incorporate the new statutory 
    requirements regarding State collection and examination of data to 
    determine if significant disproportionality based on race is occurring 
    in the State regarding the identification and placement of children 
    with disabilities.
        Proposed Sec. 300.756 would reflect new rules specified in section 
    605 of the Act regarding use of funds provided under Part B of the Act 
    for the acquisition of equipment or construction.
    
    2. Part 301--Preschool Grants for Children With Disabilities
    
    Subpart A--General
    
        Proposed Sec. 301.1 in the proposed regulations would conform the 
    regulatory purpose for the Preschool Grants for Children with 
    Disabilities Program with the provisions of section 619(a) of the Act, 
    to provide grants to States to assist them in providing special 
    education and related services to children with disabilities aged three 
    through five years, and, at a State's discretion, to two-year-old 
    children with disabilities who will turn three during the school year.
        Proposed Sec. 301.4 would list regulations found in parts other 
    than Part 301 that also apply to the Preschool Grants program. The 
    proposed regulations would be consistent with the existing regulations, 
    with three exceptions. First, the proposed regulations would specify 
    that the provisions of 34 CFR 76.125-76.137 do not apply to the 
    program, consistent with the requirements of section 611(b)(4) 
    providing that consolidation of grants is no longer possible for the 
    outlying areas. Second, the proposed regulations would specify that the 
    requirements of 34 CFR 76.650-76.662 do not apply, in light of the 
    changes proposed under Part 300 regarding the provision of services to 
    children placed by their parents in private schools. Third, the 
    reference to Part 86 would be removed, as that part no longer applies 
    to SEAs and LEAs.
        Proposed Sec. 301.5 would specify the definitions that apply to 
    certain terms used in Part 301. The section would be unchanged from the 
    existing regulations, with the following exceptions: Consistent with 
    the IDEA Amendments of 1997, proposed Sec. 301.5(a) would replace the 
    term ``intermediate educational unit'' with ``educational service 
    agency,'' and proposed Sec. 301.5(c) would add a definition of 
    ``State'' and delete definitions of ``comprehensive service delivery 
    system'' and ``excess appropriation.''
    
    Subpart B--State Eligibility for a Grant
    
        Proposed Sec. 301.10 would be conformed with section 619(b) of the 
    Act, and provide that a State is eligible to receive a grant under the 
    program if the State is eligible under 34 CFR Part 300 and the State 
    demonstrates to the satisfaction of the Secretary that it has in effect 
    policies and procedures that assure the provision of FAPE to all 
    children with disabilities aged three through five years in accordance 
    with the requirements of 34 CFR Part 300, and for any two-year-old 
    children who are provided services by the State or by an LEA. Proposed 
    Sec. 301.12 would restate the current regulation concerning sanctions 
    if a State does not make FAPE available to all preschool children with 
    disabilities to conform to the changes made by the IDEA Amendments of 
    1997 and other law.
    
    Subpart C--Allocation of Funds to States
    
        Proposed Sec. 301.20 would be conformed with section 619(c)(1) of 
    the Act, and provide that, after reserving funds for studies and 
    evaluations under section 674(e) of the Act, the Secretary will 
    allocate the remaining amount among the States in accordance with 
    Secs. 301.21-301.23.
        Proposed Sec. 301.21 would incorporate the requirements of section 
    619(c)(2)(A) of the Act which sets forth the basis on which, subject to 
    certain limitations (described in this NPRM under Sec. 301.22), 
    allocations to States under the Preschool Grants program would be 
    calculated if the amount available to States were equal to or greater 
    than the amount allocated to States for the preceding fiscal year. 
    Consistent with this statutory provision, proposed Sec. 301.21(a) would 
    provide that, except as provided in Sec. 301.22, the Secretary will 
    first allocate to each State the amount it received for fiscal year 
    1997, and then allocate 85 percent of any remaining funds to States on 
    the basis of their relative populations of children aged 3 through 5 
    and allocate 15 percent of those remaining funds to States on the basis 
    of their relative populations of all children aged 3 through 5 who are 
    living in poverty. Also reflecting the statutory requirements, proposed 
    Sec. 301.21(b) would further provide that in making these calculations, 
    the Secretary will use the most recent population data, including data 
    on children living in poverty, that are available and satisfactory to 
    the Secretary.
        Consistent with section 619(c)(2)(B) of the Act, proposed 
    Sec. 301.22 (a) and (b) would set forth floors and caps for calculating 
    the allocations to States under the Preschool Grants program in fiscal 
    years in which the amount available to States under Sec. 301.20 were 
    equal to or greater than the amount allocated to States for the 
    preceding fiscal year. Proposed Sec. 301.22(c) would also be conformed 
    to section 619(c)(2)(C) of the Act and provide for ratable reductions 
    if available funds are insufficient to make allocations to the States 
    consistent with the provisions of Sec. 301.22 (a) and (b).
        Proposed Sec. 301.23 would, consistent with the requirements of 
    section 619(c)(3) of the Act, set forth the basis on which allocations 
    to States under the Preschool Grants program would be calculated if the 
    amount available to States under Sec. 301.20 were less than the amount 
    allocated to States for the preceding fiscal year. Proposed 
    Sec. 301.23(a) would provide that if the amount available for 
    allocations were greater than the amount allocated to the States for 
    fiscal year 1997, each State would be allocated the sum of the amount 
    it received for fiscal year 1997 plus an amount that bears the same 
    relation to any remaining funds as the increase the State received for 
    the preceding fiscal year over fiscal year 1997 bears to the total of 
    all of those increases for all States. Proposed Sec. 301.23(b) would 
    provide that if the amount available for allocations is equal to or 
    less than the amount allocated to the States for fiscal year 1997, each 
    State would be allocated the amount it received for that year, ratably 
    reduced, if necessary.
        Consistent with section 619(d) of the Act, proposed Sec. 301.24 
    would provide that for each fiscal year a State may retain for 
    administration and other State-level activities, in accordance with 
    Secs. 301.25 and 301.26, not more, as calculated by the Secretary, than 
    25 percent of the amount the State received under the section 619 of 
    the Act for fiscal year 1997, cumulatively adjusted by the Secretary 
    for each succeeding fiscal year by the lesser of--(1) the percentage 
    increase, if any, from the preceding fiscal year in the State's 
    allocation under section 619 of the Act; or (2) the rate of inflation, 
    as measured by the percentage increase, if any, from the preceding 
    fiscal year in the Consumer Price Index For All Urban
    
    [[Page 55053]]
    
    Consumers, published by the Bureau of Labor Statistics of the 
    Department of Labor.
        Consistent with section 619(e) of the Act, proposed Sec. 301.25 
    would provide that a State may use not more than 20 percent of the 
    maximum amount it may retain under Sec. 301.24 for any fiscal year for 
    (a) administering section 619 of the Act (including the coordination of 
    activities under Part B of the Act with, and providing technical 
    assistance to, other programs that provide services to children with 
    disabilities); or for the administration of Part C of the Act, or both, 
    if the SEA is the lead agency for the State under that part.
        Consistent with section 619(f) of the Act, proposed Sec. 301.26 
    would provide that a State must use any funds that it retains under 
    Sec. 301.24 and does not use for administration under Sec. 301.25 for 
    any of the following: (1) support services (including establishing and 
    implementing the mediation process required by section 615(e) of the 
    Act), which may benefit children with disabilities younger than 3 or 
    older than 5 as long as those services also benefit children with 
    disabilities aged 3 through 5; (2) direct services for children 
    eligible for services under section 619 of the Act; (3) developing a 
    State improvement plan under subpart 1 of part D of the Act; (4) 
    activities at the State and local levels to meet the performance goals 
    established by the State under section 612(a)(16) of the Act and to 
    support implementation of the State improvement plan under subpart 1 of 
    part D of the Act if the State receives funds under that subpart; or 
    (5) supplementing other funds used to develop and implement a Statewide 
    coordinated services system designed to improve results for children 
    and families, including children with disabilities and their families, 
    but not to exceed one percent of the amount received by the State under 
    section 619 of the Act for a fiscal year. A note following this section 
    would provide an example of an authorized use of these funds.
    
    Subpart D--Allocation of Funds to Local Educational Agencies
    
        Proposed Sec. 301.30 would provide that a State must distribute any 
    funds that it does not retain under Sec. 301.24 to LEAs that have 
    established their eligibility under section 613 of the Act, consistent 
    with the requirements of section 619(g)(1) of the Act.
        Proposed Sec. 301.31 would, in conformity with section 619(g)(1), 
    set forth the basis on which a State must distribute the funds 
    described in Sec. 301.30 to LEAs that have established their 
    eligibility under section 613 of the Act. Proposed Sec. 301.31(a) would 
    require that the State first award to each of those agencies the amount 
    it would have received under section 619 of the Act for fiscal year 
    1997 if the State had distributed 75 percent of its grant for that year 
    under section 619(c)(3), as then in effect. Proposed Sec. 301.31(b) 
    would further require that, after making the base payment allocations 
    required by Sec. 301.28(a), the State allocate 85 percent of any 
    remaining funds to each LEA on the basis of the relative numbers of 
    children enrolled in public and private elementary and secondary 
    schools within the agency's jurisdiction, and 15 percent of those 
    remaining funds in accordance with their relative numbers of children 
    living in poverty, as determined by the SEA. A note following this 
    section would explain that States should use the best data that is 
    available to them on enrollment in public and private schools, and that 
    States have discretion in determining what data to use regarding 
    children living in poverty, and proposes some options for poverty data.
        Proposed Sec. 301.32(a) would, in conformity with section 619(g)(2) 
    of the Act, provide that: (a) If an SEA determines that an LEA is 
    adequately providing FAPE to all children with disabilities aged 3 
    through 5 residing in the area served by that agency with State and 
    local funds, the SEA may reallocate any portion of the funds under 
    section 619 of the Act that the LEA does not need in order to provide 
    FAPE to other LEAs that are not adequately providing special education 
    and related services to all children with disabilities aged 3 through 5 
    residing in the areas they serve.
        Proposed Sec. 301.32(b) would provide that if a State provides 
    services to preschool children with disabilities because some or all 
    LEAs are unable or unwilling to provide appropriate programs, the SEA 
    may use payments that would have been available to those LEAs to 
    provide special education and related services to children with 
    disabilities aged 3 through 5 years, and to two-year-old children with 
    disabilities, residing in the areas served by those LEAs and ESAs.
    
    3. Part 303--Early Intervention Program for Infants and Toddlers With 
    Disabilities
    
        A few changes would be made to the Part 303 regulations to conform 
    to similar changes proposed for the Part 300 regulations. As indicated, 
    other changes to incorporate statutory changes made by the IDEA 
    Amendments of 1997 with regard to the Early Intervention Program for 
    Infants and Toddlers with Disabilities will be made at a later date as 
    technical changes.
        In Sec. 303.18, the Secretary proposes to add a new paragraph (b) 
    specifying that a State may provide that a foster parent qualifies as a 
    parent under Part 303 if certain specified standards are met. The note 
    following this section would be revised, consistent with the change to 
    the regulation. These changes would be consistent with changes proposed 
    in proposed Sec. 300.19.
        In Sec. 303.403, the Secretary proposes to add a new subparagraph 
    (b)(4) to provide that prior notice to parents under this part includes 
    information about the State complaint procedures required by 
    Secs. 303.510--303.512, including how to file a complaint and the 
    timelines under the State complaint procedures. This change would 
    conform to proposed Sec. 300.503, concerning the content of prior 
    notice under Part 300. The Secretary believes that if parents know 
    about these procedures, they may use them as an alternative to the more 
    costly and formal mechanisms of due process and mediation.
        In Sec. 303.510, the Secretary proposes to amend paragraph (b) to 
    specify that the lead agency's State complaint procedures must include 
    procedures for widely disseminating to parents and others the State's 
    complaint procedures. The Secretary intends, through this requirement 
    and the change proposed in Sec. 303.403, to insure that persons 
    interested in early intervention services for infants and toddlers with 
    disabilities in the State know that there are alternatives to resorting 
    to due process hearings that can be used to resolve disputes. A note 
    would be added following this section to explain that in resolving a 
    complaint alleging a failure to provide services in accordance with an 
    IFSP, a lead agency may award compensatory services as a remedy. These 
    changes would be consistent with changes proposed to Sec. 300.660.
        In Sec. 303.511, the Secretary proposes to add a new paragraph (c) 
    that would specify that complaints must be received by the public 
    agency within one year of the alleged violation, unless a longer period 
    is reasonable because the violation is continuing or the complainant is 
    requesting compensatory services for a violation that occurred not more 
    than three years prior to the date the complaint is received. The 
    Secretary believes that public agencies should not be required in the 
    future to use their resources to resolve complaints that do not involve 
    issues that are relevant to the current operation of the State's 
    program and that do not involve the possibility of remedy for 
    particular
    
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    children. A note would be added following this section to explain that 
    the lead agency must resolve any complaint that meets the requirements 
    of this section, even if it has been filed by an organization or 
    individual from another State. These changes would conform to changes 
    in proposed Sec. 300.662.
        In Sec. 303.512, the Secretary proposes to delete the provision 
    from the current regulation regarding Secretarial review. This change 
    reflects a recommendation of the Department's Inspector General in his 
    report of August 1997 on the utility and efficiency of the Secretarial 
    review process under the IDEA. In that report, the Inspector General 
    noted that the Secretarial review process is diverting the Department's 
    limited resources to an activity that is providing minimal benefits to 
    children with disabilities and the program. The Secretary expects that 
    removing the Secretarial review provision will allow the Department to 
    spend more of its time and attention on evaluating States' systems for 
    ensuring compliance with program requirements, which will have benefit 
    for all parties interested in these programs. Two notes would be added 
    following this section. Note 1 would clarify that if a complaint raises 
    an issue that is also the subject of a due process hearing, or multiple 
    issues, some of which are also the subject of a due process hearing, 
    the State must set aside the issues in due process until the end of the 
    hearing, but resolve the remaining issues in the complaint within the 
    60-day complaint timeline. Note 2 would explain that if an issue raised 
    in a complaint previously had been the subject of a due process 
    hearing, the hearing decision would be binding, and the State would 
    satisfy its obligation under these procedures by informing the 
    complainant that the hearing decision is binding as to that issue. The 
    note would also explain that the State would have to resolve an alleged 
    failure to implement a due process hearing decision. These changes 
    would conform to changes in proposed Sec. 300.661.
        In Sec. 303.520, a new paragraph (d) would be added that would 
    provide that a lead agency may not require parents, if they would incur 
    a financial cost, to use private insurance proceeds to pay for the 
    services that must be provided to an eligible child under this part. 
    The Department recognizes the important policy underlying this program 
    that requires States to use all available sources of funding for 
    providing services. Therefore, this new provision would permit States 
    to require families to use private insurance if the families would 
    incur no financial cost. Proposed paragraph (d) would incorporate the 
    Department's interpretation that requiring parents to use their private 
    insurance if that would result in a financial cost to the family is not 
    compatible with the statutory requirement that early intervention 
    services be at no cost except where Federal or State law provides for a 
    system of payments by families, including a schedule of sliding fees. 
    It would also identify what is meant by the term ``financial cost.'' A 
    note would be added following this section to explain how this applies 
    if families are covered by both private insurance and Medicaid.
        As noted in the section of this preamble discussing the Part 300 
    regulations, the Secretary believes that the same basic principle would 
    be equally applicable to parents who are eligible for public insurance, 
    but that there is no current need to regulate on the public insurance 
    issue because there is no risk of financial loss to parents under 
    current public insurance programs such as Medicaid. The Secretary 
    invites comment on whether a policy on public insurance similar to the 
    proposed section on private insurance should be added to the final 
    regulation. A second note would be added to explain that if a State 
    cannot get parent consent to use public or private insurance for a 
    service, the agency may use funds under this part to pay for that 
    service. In addition, the note would explain that to avoid financial 
    cost to parents who otherwise would consent to the use of private 
    insurance, the lead agency may use funds under this part to pay the 
    costs of accessing the insurance, such as deductible or co-pay amounts.
        In addition, the Secretary proposes to add a new paragraph (e) to 
    specify that proceeds from public or private insurance may not be 
    treated as program income for purposes of 34 CFR Sec. 80.25. That 
    section imposes limitations on how program income can be spent that 
    could lead to States returning reimbursements from public and private 
    insurance to the Federal government or requiring those funds be used 
    under this part, which could discourage States from using all the 
    resources available in paying for services under this part. Given the 
    current small percentage that Federal funds under this part are of 
    total funding for this program, and the fact that eligible infants and 
    toddlers with disabilities are guaranteed services under this part, the 
    Secretary believes that States should be given some flexibility in how 
    they use and account for funds received as reimbursements from other 
    sources. A note would be added after this section explaining the 
    consequences, under the nonsupplanting requirement, of various State 
    choices in accounting for these funds. These changes would be similar 
    to provisions in proposed Sec. 300.142.
    
    Goals 2000: Educate America Act
    
        The Goals 2000: Educate America Act (Goals 2000) focuses the 
    Nation's education reform efforts on the eight National Education Goals 
    and provides a framework for meeting them. Goals 2000 promotes new 
    partnerships to strengthen schools and expands the Department's 
    capacities for helping communities to exchange ideas and obtain 
    information needed to achieve the goals.
        These proposed regulations would address the following National 
    Education Goals:
         All children in America will start school ready to learn.
         The high school graduation rate will increase to at least 
    90 percent.
         All students will leave grades 4, 8, and 12 having 
    demonstrated competency in challenging subject matter, including 
    English, mathematics, science, foreign languages, civics and 
    government, economics, arts, history, and geography; and every school 
    in America will ensure that all students learn to use their minds well, 
    so they may be prepared for responsible citizenship, further learning, 
    and productive employment in our Nation's modern economy.
         United States students will be first in the world in 
    mathematics and science achievement.
         Every adult American will be literate and will possess the 
    knowledge and skills necessary to compete in a global economy and 
    exercise the rights and responsibilities of citizenship.
         Every school in the United States will be free of drugs, 
    violence, and the unauthorized presence of firearms and alcohol and 
    will offer a disciplined environment conducive to learning.
         The Nation's teaching force will have access to programs 
    for the continued improvement of their professional skills and the 
    opportunity to acquire the knowledge and skills needed to instruct and 
    prepare all American students for the next century.
         Every school will promote partnerships that will increase 
    parental involvement and participation in promoting the social, 
    emotional, and academic growth of children.
    
    Executive Order 12866
    
    1. Potential Costs and Benefits
    
        These proposed regulations have been reviewed in accordance with 
    Executive
    
    [[Page 55055]]
    
    Order 12866. Under the terms of the order the Secretary has assessed 
    the potential costs and benefits of this regulatory action.
        These proposed regulations implement changes made to the 
    Individuals with Disabilities Education Act by the IDEA Amendments of 
    1997 and make other changes determined by the Secretary as necessary 
    for administering this program effectively and efficiently.
        The IDEA Amendments of 1997 made a number of significant changes to 
    the law. While retaining the basic rights and protections that have 
    been in the law since 1975, the amendments strengthened the focus of 
    the law on improving results for children with disabilities. The 
    amendments accomplished this through changes that promote the early 
    identification of and provision of services to children with 
    disabilities, the development of individualized education programs that 
    enhance the participation of children with disabilities in the general 
    curriculum, the education of children with disabilities with 
    nondisabled children, higher expectations for children with 
    disabilities and accountability for their educational results, the 
    involvement of parents in their children's education, and reducing 
    unnecessary paperwork and other burdens to better direct resources to 
    improved teaching and learning.
        All of these objectives are reflected in the proposed regulations, 
    which largely reflect the changes to the statute made by IDEA 
    Amendments of 1997.
        In assessing the potential costs and benefits--both quantitative 
    and qualitative--of these proposed regulations, the Secretary has 
    determined that the benefits of the proposed regulations justify the 
    costs.
        The Secretary has also determined that this regulatory action does 
    not unduly interfere with State, local, and tribal governments in the 
    exercise of their governmental functions.
        Burdens specifically associated with information collection 
    requirements are identified and explained elsewhere in this preamble 
    under the heading Paperwork Reduction Act of 1995.
        To assist the Department in complying with the specific 
    requirements of Executive Order 12866, the Secretary invites comment on 
    whether there may be further opportunities to reduce any potential 
    costs or increase potential benefits resulting from these proposed 
    regulations without impeding the effective and efficient administration 
    of the program.
        This is a significant regulatory action under section 3(f)(1) of 
    Executive Order 12866, and an economic analysis was conducted 
    consistent with section 6(a)(3)(C) of the Executive Order. Due to the 
    lack of data, the Secretary particularly request public comments to 
    assist in determining whether these regulations are economically 
    significant under the Executive Order.
    Summary of Potential Benefits and Costs
        Benefits and Costs of Statutory Changes: For the information of 
    readers, the following is an analysis of the costs and benefits of the 
    most significant statutory changes made by IDEA Amendments of 1997 that 
    are incorporated into the IDEA regulations. Based on this analysis, the 
    Secretary has concluded that the statutory changes included in this 
    regulation will not, in total, impose significant costs in any one 
    year, and may result in savings to State and local educational 
    agencies. An analysis of specific provisions follows:
    
    Participation in Assessments
    
        Proposed Sec. 300.138 incorporates statutory requirements relating 
    to the inclusion of children with disabilities in general State and 
    district-wide assessments and the conduct of alternate assessments for 
    children who cannot be appropriately included in general assessments.
        Although children with disabilities have not been routinely 
    included in State and district-wide assessments, the requirement to 
    include children with disabilities in assessment programs in which they 
    can be appropriately included, with or without accommodations, does not 
    constitute a change in Federal law. Because the Secretary regards this 
    statutory change as a clarification, not a change, in the law, no cost 
    impact is assigned to this requirement, which is incorporated in 
    Sec. 300.138(a) requiring the participation of children with 
    disabilities in general assessments.
        However, States were not previously required to conduct alternate 
    assessments for children who could not participate in the general 
    assessments. The statutory requirement to develop and conduct alternate 
    assessments beginning July 1, 2000, therefore, imposes a new cost for 
    States and districts.
        The impact of this change will depend on the extent to which States 
    and districts administer general assessments, the number of children 
    who cannot appropriately participate in those assessments, the cost of 
    developing and administering alternate assessments, and the extent to 
    which children with disabilities are already participating in alternate 
    assessments.
        In analyzing the impact of this requirement, the Secretary assumes 
    that alternate tests would be administered to children with 
    disabilities on roughly the same schedule as general assessments. This 
    schedule will vary considerably from State to State and within States, 
    depending on their assessment policy. In most States, this kind of 
    testing does not begin before the third grade. In many States and 
    districts, general assessments are not administered to children in all 
    grades, but rather at key transition points (typically grades 4, 8, and 
    11).
        The extent to which States and districts will need to provide for 
    alternate assessments will also vary depending on how the general 
    assessments are structured. Based on the experience of States that have 
    implemented alternate assessments for children with disabilities, the 
    Secretary estimates that about one to two percent of the children in 
    any age cohort will be taking alternate assessments.
        Based on this information, the Secretary predicts that about 18 to 
    36 million of the children who are expected to be enrolled in public 
    schools in school year 2000-2001 will be candidates for general 
    assessments. Of these, the Secretary estimates that approximately 
    200,000 to 700,000 will be children with disabilities who may require 
    alternate assessments.
        The costs of developing and administering these assessments are 
    also difficult to gauge. In its report Educating One and All, the 
    National Research Council states that the estimated costs of 
    performance-based assessments programs range from less than $2 per 
    child to over $100 per student tested. The State of Maryland has 
    reported start-up costs of $191 per child for testing a child with a 
    disability and $31 per child for the ongoing costs of administering an 
    alternate assessment.
        The cost impact of requiring alternate assessments will be reduced 
    to the extent that children with disabilities are already participating 
    in alternate assessments. Many children with disabilities are already 
    being assessed outside the regular assessment program in order to 
    determine their progress in meeting the objectives in their IEPs. In 
    many cases, these assessments might be adequate to meet the new 
    statutory requirement.
        Based on all of this information, the Secretary has concluded that 
    the cost impact of this statutory change is not likely to be 
    significant, and will be
    
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    justified by the benefits of including all children in accountability 
    systems.
    
    Incidental Benefits
    
        The change made by section 613(a)(4) of the IDEA, incorporated in 
    proposed Sec. 300.235, generates savings by reducing the time that 
    would have been spent by special education personnel on maintaining 
    records on how their time is allocated in regular classrooms among 
    children with and without disabilities.
        To calculate the impact of this change, one needs to estimate the 
    number of special education personnel who will be providing services to 
    children with and without disabilities in regular classrooms and the 
    amount and value of time that would have been required to document 
    their allocation of time between disabled and nondisabled children.
        Based on State-reported data on placement, it appears that about 4 
    million children will spend part of their day in a regular classroom 
    this school year. It is difficult to predict the extent to which these 
    children will be receiving services in the regular classroom from a 
    special education teacher or related services provider. However, the 
    Secretary believes that this statutory change will not only eliminate 
    unnecessary paperwork in situations in which special education 
    personnel have been working in the regular classroom and documenting 
    their allocation of time, but will encourage the provision of special 
    education services in the regular classroom--a change that will benefit 
    children with disabilities.
    
    Individualized Education Programs
    
        The proposed regulations incorporate a number of statutory changes 
    in section 614(d) that relate to the IEP process and the content of the 
    IEP. With the exception of one requirement (the requirement to include 
    a regular education teacher in IEP meetings), the Secretary has 
    determined that, on balance, these changes will not increase the cost 
    of developing IEPs. Moreover, all the changes will produce significant 
    benefits for children and families. Key changes include:
        Clarifying that the team must consider a number of special factors 
    to the extent they are applicable to the individual child. The 
    Secretary does not regard the statutory changes that are incorporated 
    in Sec. 300.346 as imposing a new burden on school districts because 
    the factors that are listed should have been considered, as 
    appropriate, under the IDEA before the enactment of IDEA Amendments of 
    1997. These include: behavioral interventions for a child whose 
    behavior impedes learning, language needs for a child with limited 
    English proficiency, Braille for a blind or visually impaired child, 
    the communication needs of the child, and the child's need for 
    assistive technology.
        Strengthening the focus of the IEP on access to the general 
    curriculum in statements about the child's levels of performance and 
    services to be provided. The Secretary does not regard the statutory 
    changes that are incorporated in Sec. 300.347 relating to the general 
    curriculum as burdensome because the changes merely refocus the content 
    of statements that were already required to be included in the IEP on 
    enabling the child to be involved in and progress in the general 
    curriculum.
        Requiring an explanation of the extent to which a child will not be 
    participating with nondisabled children. This statutory requirement, 
    which is incorporated in Sec. 300.347(a)(4), does not impose a burden 
    because it replaces the requirement for a statement of the extent to 
    which the child will be able to participate in regular educational 
    programs.
        Requiring the IEP to include a statement of any needed 
    modifications to enable a child to participate in an assessment, and, 
    in cases in which a child will not be participating in a State or 
    districtwide assessment, to include a statement regarding why the 
    assessment is not appropriate and how the child will be assessed. The 
    Secretary does not believe the inclusion of these statements, required 
    statute and incorporated in Sec. 300.447(a)(5), will be unduly 
    burdensome. Many school districts already include statements in the IEP 
    regarding assessments, including information about needed 
    accommodations.
        Allowing the IEP team to establish benchmarks rather than short-
    term objectives in each child's IEP. There is considerable variation 
    across States, districts, schools, and children in the amount of time 
    spent on developing and describing short-term objectives in each 
    child's IEP. While it would be difficult to estimate the impact of this 
    statutory change, contained in Sec. 300.347(a)(2), it clearly affords 
    schools greater flexibility and an opportunity to reduce paperwork in 
    those cases in which the team has previously included unnecessarily 
    detailed curriculum objectives in the IEP document.
        Prior to the enactment of the IDEA Amendments of 1997, IDEA 
    required the participation of the ``child's teacher,'' typically read 
    as the child's special education teacher, but it did not explicitly 
    require a regular education teacher. The IDEA Amendments of 1997, 
    incorporated in Sec. 300.344(a)(2) of this proposed regulation require 
    the participation of the child's special education teacher and a 
    regular education teacher if the child is or may be participating in 
    the regular education classroom.
        The impact of this change will be determined by the number of 
    children with disabilities who are or who may be participating in the 
    regular classroom in a given year, the number and length of IEP 
    meetings, the opportunity cost of the regular education teacher's 
    participation, and the extent to which regular education teachers are 
    already attending IEP meetings.
        State-reported data for school year 1994-95 indicates that about 
    3.8 million children with disabilities aged 3 through 21 spend at least 
    40 percent of their day in a regular classroom (children reported as 
    placed in regular classes and resource rooms). The participation of the 
    regular education teacher would be required for all of these children 
    since these children are spending at least part of their day in the 
    regular classroom.
        State data also show that an additional 1.2 million children were 
    served in separate classrooms. A regular education teacher's 
    participation will clearly be required for those children in separate 
    classes who are spending part of their school day in regular classes 
    (less than 40 percent of their day). Other children may be 
    participating with nondisabled children in some activities in the same 
    building. While a child's individual needs and prospects will determine 
    whether a regular education teacher would need to attend a child's IEP 
    meeting in those cases, the Secretary believes that some proportion of 
    these children are children for whom participation in regular 
    classrooms is a possibility, therefore requiring the participating of a 
    regular education teacher.
        Although the prior statute did not require the participation of a 
    regular education teacher, it is not uncommon for States or school 
    districts to require a child's regular education teacher to attend IEP 
    meetings.
        Based on all of this information, the Secretary estimates that the 
    participation of a regular education teacher may be required in an 
    additional 3.7 to 5.2 million IEP meetings in the next school year.
        While the opportunity costs of including a regular education 
    teacher in these meetings will be significant because of the number of 
    meetings involved, the Secretary believes these costs will be more than 
    justified by the benefits to be realized by teachers,
    
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    schools, children, and families. Involving the regular education 
    teacher in the development of the IEP will not only provide the regular 
    education teacher with needed information about the child's disability, 
    performance, and educational needs, but will help ensure that a child 
    receives the supports the child needs in the regular classroom, 
    including services and modifications that will enable the child to 
    progress in the general curriculum.
    
    Parentally-Placed Students in Private Schools
    
        This statutory change, which is incorporated in Sec. 300.453, would 
    require school districts to spend a proportionate amount of the funds 
    received under Part B of the IDEA on services to children with 
    disabilities who are enrolled by their parents in private elementary 
    and secondary schools.
        The change does not have an impact on most States because the 
    statute does not represent a change in the Department's interpretation 
    of the law as it was in effect prior to the enactment of IDEA 
    Amendments of 1997. However, prior to the change in the law in three 
    Federal circuits, the courts concluded that school districts generally 
    were responsible for paying for the total costs of special education 
    and related services needed by students with disabilities who have been 
    parentally placed in private schools. Therefore, this change does 
    produce potential savings for school districts in those 12 States 
    affected by these court decisions. The States are: Colorado, 
    Connecticut, Kansas, Louisiana, Mississippi, New Mexico, New York, 
    Oklahoma, Texas, Utah, Vermont, and Wyoming.
        To determine the impact of the change, one needs to estimate the 
    number of parentally placed children with disabilities that LEAs would 
    have been required to serve, but for this change. Using private school 
    enrollment data for school year 1993-94 and projected growth rates, the 
    Secretary estimates that approximately 1.2 million students will be 
    enrolled in private schools in these 12 States in this school year.
        There is no reliable data on the number of children with 
    disabilities who are parentally placed in private schools. However, if 
    one assumes that children with disabilities are found in private 
    schools in the same proportion as they are found in public schools in 
    these States, or at least in the same proportion that children with 
    speech impairments and learning disabilities are found in public 
    schools, one would estimate that there are between 60,000 and 89,000 
    children with disabilities who are parentally placed in private 
    schools.
        If one assumes that, on average, the cost of providing a free 
    appropriate education to these students would be approximately equal to 
    the average excess costs for educating students with disabilities--
    $6,797 per child for school year 1997-98, the costs of providing FAPE 
    to these children would be significant.
        Under the statutory change, public schools would still be required 
    to provide services to parentally-placed children in an amount 
    proportionate to their share of the total population of children with 
    disabilities. Therefore, in estimating the impact of this statutory 
    change, one needs to subtract the cost of the public school obligation 
    from the total projected savings. This amount will vary with the 
    proportion of children attending private schools and the size of the 
    Federal appropriation. While the precise amount of this obligation is 
    indeterminate, the Secretary has concluded that the total net savings 
    to the public sector attributable to the change in the law for these 12 
    States will be very significant.
    
    Mediation
    
        Proposed Sec. 300.506 reflects the new statutory provisions in 
    section 615(e) of the IDEA, which require States to establish and 
    implement mediation procedures that would make mediation available to 
    the parties whenever a due process hearing is requested. The Act 
    specifies how mediation is to be conducted.
        The impact of this change will depend on the following factors: the 
    number of due process hearings that will be requested, the extent to 
    which the parties to those hearings will agree to participate in 
    mediation, the cost of mediation, the extent to which mediation would 
    have been used in the absence of this requirement to resolve 
    complaints, and the extent to which mediation obviates the need for a 
    due process hearing.
        Data for previous years suggests one can expect about one complaint 
    for every 1000 children served or about 5,800 requests for due process 
    hearings during the next year. This projection probably overstates the 
    number of complaints because it does not take into account the effect 
    of IDEA Amendments of 1997, which, on balance, can be expected to 
    result in better implementation of the law and higher parental 
    satisfaction with the quality of services and compliance with the IDEA.
        Many of these complaints would have been resolved through mediation 
    even without the statutory change. Over 39 States had mediation systems 
    in place prior to the enactment of IDEA Amendments of 1997. Data for 
    1992 indicate that, on average, States with mediation systems held 
    mediations in about 60 percent of the cases in which hearings were 
    requested. Nevertheless, the Secretary expects the number of mediations 
    to increase even in States that already have mediation systems. 
    Although most States report using mediation as a method of resolving 
    disputes, there have been considerable differences in its 
    implementation and use. In general, the extent to which mediation has 
    been used in States probably depends on the extent to which parents and 
    others were informed of its availability and possible benefits in 
    resolving their complaints and the extent to which the mediator was 
    perceived as a neutral third-party. The Secretary believes that the 
    changes made by IDEA Amendments of 1997 will eliminate some of the 
    differences in State mediation systems that have accounted for its 
    variable use and effectiveness.
        The benefits of making mediation more widely available are expected 
    to be substantial, especially in relation to the costs. States with 
    well-established mediation systems conduct considerably fewer due 
    process hearings. For example, in California hearings were held in only 
    5 and 7 percent of the cases in which they were requested in 1994 and 
    1995, respectively. The average mediation appears to cost between $350 
    and $1,000, while a due process hearing can cost tens of thousands of 
    dollars. Based on the experience that many different States have had 
    with mediation, the Secretary estimates that hundreds of additional 
    complaints will be resolved through mediation. The benefits to school 
    districts and benefits to families are expected to be substantial.
    
    Discipline
    
        The proposed regulations (Secs. 300.121, 300.122, 300.520, and 
    300.521) incorporate a number of significant changes to the IDEA that 
    relate to the procedures for disciplining children with disabilities.
        Some of the key changes contained in section 615(k) afford school 
    districts additional tools for responding to serious behavioral 
    problems, and in that regard, do not impose any burdens on schools or 
    districts.
        The statutory change reflected in proposed Sec. 300.520 would give 
    school officials the authority to remove children who engaged in 
    misconduct involving weapons or illegal drugs.
    
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    Under prior law, school officials had the authority to remove children 
    who brought guns, but could not remove children who engaged in 
    misconduct involving other weapons or illegal drugs over the objection 
    of their parents unless they prevailed in a due process proceeding or 
    obtained a temporary restraining order from a court. The statutory 
    change reflected in proposed Sec. 300.521 would give school officials 
    the option of seeking relief from a hearing officer rather than a court 
    in the case of a child the school is seeking to remove because the 
    child poses a risk of injury to the child or others. In both cases, the 
    child would continue to receive services in an alternative educational 
    setting that is required to meet certain standards. It is difficult to 
    assess the impact of either of these statutory changes on schools 
    because there is virtually no information available on the extent to 
    which parents disagree with districts that propose to remove these 
    children. This new authority would only be used in those cases. 
    Nevertheless, the Secretary believes the benefits of this authority to 
    be substantial insofar as the changes help schools provide for a safe 
    environment for all children, while ensuring that any children with 
    disabilities who are moved to an alternative setting continue to 
    receive the services they need.
        The statutory change reflected in proposed Sec. 300.520(b) will 
    require school officials to convene the IEP team in cases in which 
    removal for more than 10 school days is contemplated to develop an 
    assessment plan and behavioral interventions (or to review the child's 
    behavioral intervention plan if there is one). These would include all 
    cases in which a school is proposing to suspend a child for more than 
    10 days in a given year or to expel a child.
        Because of the dearth of data on the number and length of 
    suspensions, it is difficult to estimate the impact of this change. 
    However, based on data collected by the Office for Civil Rights on the 
    number of children suspended each year, the Secretary estimates about 
    300,000 children with disabilities will be suspended for at least one 
    school day this year. Based on an analysis of data from selected 
    States, the Secretary estimates that this review may have to be 
    conducted for only a portion of these children since most of the 
    children who are suspended receive only short-term suspensions. 
    Although there will be a cost associated with convening the IEP team, 
    in many cases, this review will be conducted at the same time as the 
    required manifestation determination and much of the information needed 
    for that determination could be used in conducting this review. 
    Moreover, the benefits of this review are expected to be substantial. 
    The Secretary believes that the development and implementation of 
    appropriate behavioral interventions for children with disabilities 
    will reduce the need for disciplinary actions and all the concomitant 
    costs.
        The requirement in section 612(a)(1)(A), incorporated in proposed 
    Sec. 300.121, that all children aged 3 through 21 must have made 
    available to them a free appropriate public education, including 
    children who have been suspended or expelled from school, does not 
    represent a change in the law as the law was interpreted by the 
    Department prior to the enactment of the IDEA Amendments of 1997. It 
    clarifies the Department's long-standing position that the IDEA 
    requires the continuation of special education and related services 
    even to children who have been expelled from school for conduct that 
    has been determined not to be a manifestation of their disability.
        However, this statutory change does represent a change in the law 
    in two circuits in which Federal Circuit courts disagreed with the 
    Department's interpretation of the law--the 4th and 7th Circuits. The 
    affected States are: Virginia, Maryland, North Carolina, South 
    Carolina, West Virginia, Illinois, Indiana, and Wisconsin.
        To assess the impact of this change, one needs to estimate the 
    extent to which students would have been excluded from education, but 
    for this change in the statute, and the cost of providing the required 
    services to these students during the period they are expected to be 
    excluded from their regular school due to a long-term suspension or 
    expulsion.
        There is a paucity of data available on disciplinary actions, and 
    very little for the States in the 4th and 7th circuits. Using data 
    collected by the Office for Civil Rights for school year 1994, the 
    Secretary estimates that approximately 60,000 students aged 6 through 
    21 will be suspended during this school year. But to determine the 
    impact of the prohibition on ceasing services in these States, one 
    needs to know the number of suspensions each student received and their 
    duration--information that is not provided by OCR data. However, more 
    detailed data compiled by a few States would suggest that a relatively 
    small percentage of students who are suspended receive suspensions of 
    greater than 10 days at a time and a much smaller number of students 
    are expelled.
        No information is available on the cost of providing services in an 
    alternative setting for a student who has been suspended temporarily or 
    expelled from school. However, it is reasonable to assume that the cost 
    probably would be no greater than the average daily total costs of 
    serving children with disabilities and no less than the cost of 
    providing instruction in a Home or Hospital setting, or between $29 and 
    $70 per day.
        While this statutory change will have a cost impact on the States 
    in the fourth and seventh circuits, the Secretary believes the costs 
    for these States will be justified by the benefits of continuing 
    educational services for children who are the least likely to succeed 
    without the help they need.
        The statutory change reflected in proposed Sec. 300.122 could 
    generate potential savings for all States by removing the obligation to 
    provide educational services to individuals 18 years old or older who 
    were incarcerated in adult prisons and who were not previously 
    identified as disabled. We have no information on the number of 
    prisoners with disabilities who were not previously identified.
    
    Triennial Evaluation
    
        The existing regulations require a school district to conduct an 
    evaluation of each child served under the IDEA every three years to 
    determine, among other things, whether the child is still eligible for 
    special education. The IDEA Amendments of 1997 change this requirement 
    to reduce unnecessary testing and therefore reduce costs. Specifically, 
    section 614(c) of the IDEA, incorporated in proposed Sec. 300.533, 
    allows the evaluation team to dispense with tests to determine the 
    child's continued eligibility if the team concludes this information is 
    not needed. However, these tests must be conducted if the parents so 
    request.
        The savings resulting from this change will depend on the following 
    factors: the number of children for whom an evaluation is conducted 
    each year to comply with the requirement for a triennial evaluation, 
    the cost of the evaluation, and an estimate of the extent to which 
    testing will be reduced because it is determined by the IEP team to be 
    unnecessary and is not requested by the parents.
        Based on an analysis of State-reported data, the Secretary 
    estimates that approximately 1.4 million children will be eligible for 
    triennial evaluations in school year 1997-98 or roughly 25 percent of 
    the children to be served.
        The IDEA Amendments of 1997 make it clear that districts no longer 
    need to conduct testing to determine whether a
    
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    child still has a disability, if the evaluation team determines this 
    information is not needed and the parent agrees. However, while the 
    regulation permits the team to dispense with unneeded testing to 
    determine whether the child still has a disability, the team still has 
    an obligation to meet to review any existing evaluation data and to 
    identify what additional data are needed to determine whether the child 
    is still eligible for special education and related services, the 
    present levels of performance of the child, and whether any 
    modifications in the services are needed. In view of these 
    requirements, the Secretary assumes that there will be some cost 
    associated with conducting the triennial evaluation even in those cases 
    in which both the team and the parents agree to dispense with testing. 
    The Secretary estimates that the elimination of unnecessary testing 
    could reduce the personnel costs by as much as 25 to 75 percent. While 
    there is no national data on the average cost of conducting a triennial 
    evaluation under the current regulations, the Secretary believes that a 
    triennial evaluation has typically required the participation of 
    several professionals for several hours and has cost as much as $1000.
        If one assumes, for purposes of this analysis, that savings are 
    achievable in roughly half of the triennial evaluations that will be 
    conducted and that elimination of unnecessary testing could reduce 
    personnel costs by at least 25 percent, one would project substantial 
    savings for LEAs that are attributable to this change.
        Benefits and Costs of Proposed Non-statutory Regulatory Changes: 
    The following is an analysis of the benefits and costs of the 
    nonstatutory proposed regulatory changes that includes consideration of 
    the special effects these proposals may have for small entities.
        The proposed regulations primarily affect State and local 
    educational agencies, which are responsible for carrying out the 
    requirements of Part B of the IDEA as a condition of receiving Federal 
    financial assistance under that Act. Some of the proposed changes also 
    affect children attending private schools and consequently indirectly 
    affect private schools.
        For purposes of this analysis as it relates to small entities, the 
    Secretary has focused on local educational agencies because these 
    proposed regulations most directly affect local school districts. The 
    Secretary proposes to use a definition of small school district 
    developed by the National Center for Education Statistics for purposes 
    of its recent publication, ``Characteristics of Small and Rural School 
    Districts.'' In that publication, NCES defines a small district as 
    ``one having fewer students in membership than the sum of (a) 25 
    students per grade in the elementary grades it offers (usually K-8) and 
    (b) 100 students per grade in the secondary grades it offers (usually 
    9-12)''. Using this definition, approximately 34 percent of the 
    Nation's school districts would be considered small and serve about 2.5 
    percent of the Nation's students. NCES reports that approximately 12 
    percent of these students have IEPs.
        Both small and large districts will experience economic impacts 
    from this proposed rule. Little data are available that would permit a 
    separate analysis of how the proposed changes affect small districts in 
    particular. Therefore, the Secretary specifically invites comments on 
    the differential effects of the proposed regulations on small 
    districts.
        For purposes of this analysis, the Secretary assumes that the 
    effect of the proposed regulations on small entities would be roughly 
    proportional to the number of children with disabilities served by 
    those districts.
        For school year 1997-98, we estimate that approximately 50 million 
    children will be enrolled in public elementary and secondary schools. 
    Using the NCES definition and assuming all districts grew at the same 
    rate between school year 1993-94 and 1997-98, the Secretary estimates 
    that approximately 1.25 million children are enrolled in small 
    districts. Applying the NCES estimate of 12 percent, we estimate that 
    these districts serve approximately 150,000 children with disabilities 
    of the 5.806 million children with disabilities served nationwide.
        There are many changes in the proposed regulations that are 
    expected to result in economic impacts--both positive and negative. For 
    purposes of this analysis, we estimated the impact of those non-
    statutory changes that were not required by changes that were made in 
    the statute by the IDEA amendments.
        The following is a summary of the estimated economic and non-
    economic impact of the key changes in this proposed regulation:
        Section 300.12--Definition of ``General Curriculum''--This proposed 
    regulation does not limit flexibility or impose any burden. Its 
    inclusion helps to clarify what is intended by this term.
        Sections 300.19(b) and 303.18(b)--Definition of ``Parent''--
    Proposed paragraph (b), which defines the circumstances under which a 
    State may treat a foster parent as a parent for purposes of IDEA, does 
    not impose any burden on State or local agencies. The proposed 
    definition is intended to promote the appropriate involvement of foster 
    parents consistent with the best interests of the child by ensuring 
    that those who best know the child are involved in decisions about the 
    child's education. To the extent there is any economic impact of this 
    proposal, it should reduce costs on States and local agencies that they 
    would otherwise incur for training and appointing surrogate parents for 
    children whose educational interests under this proposal could 
    appropriately be represented by their foster parents.
        Section 300.24(b)(3)--Definition of ``Specially-designed 
    instruction''--Proposed paragraph (b)(3) defines ``specially-designed 
    instruction'' in order to give more definition to the term ``special 
    education,'' which is defined in this section as ``specially-designed 
    instruction.'' The definition is intended to clarify that the purpose 
    of adapting the content, methodology or delivery of instruction is to 
    address the child's unique needs and to ensure access to the general 
    curriculum. This provision increases the potential of children with 
    disabilities to participate more effectively in the general curriculum.
        Section 300.121--Continuation of Services--Proposed section 300.121 
    would add the statutory provision that the right to a free appropriate 
    public education extends to children with disabilities who have been 
    suspended or expelled from school. Proposed paragraph (c)(1) would 
    define children who have been suspended or expelled from school to mean 
    children who have been removed from their current educational placement 
    for more than 10 school days in a given school year. Proposed paragraph 
    (c) would clarify that in providing FAPE to these children an agency 
    shall meet the requirements provided in the statute for interim 
    alternative educational settings for children removed for possessing 
    weapons or drugs or if they are likely to injure themselves or others 
    if they remain in their current placement.
        In determining whether and how to regulate on this issue, the 
    Secretary considered the impact of various alternatives on small and 
    large school districts and children with disabilities and their 
    families, and tried to strike an appropriate balance between the 
    educational needs of students and the burden on schools.
        Many of the comments received in response to the Department's 
    notice published in July expressed concern that the statute may be read 
    to require school districts to continue to provide services to a child 
    who has been suspended regardless of the duration of the suspension. 
    School districts argue
    
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    that if the statute is interpreted to require these services, this will 
    impose a significant burden on schools and interfere with their ability 
    to ensure a safe and orderly environment for all children.
        Some will argue that the statute could and should be read to give 
    schools the flexibility they had under IDEA before it was amended not 
    to provide services to children suspended for fewer than 10 school days 
    at a time, regardless of the cumulative effect, as long as there is no 
    pattern of exclusion that warrants treating an accumulation that 
    exceeds 10 school days as a change in placement.
        While it is difficult to quantify the cost of requiring schools to 
    provide services to all children who are suspended for one or more 
    school days, the Secretary agrees that the burden for schools districts 
    could be substantial. Based on data collected by the Office for Civil 
    Rights for school year 1992 and data on the number of children who are 
    currently being served under the IDEA, the Secretary estimates that 
    approximately 300,000 children with disabilities will be suspended for 
    at least one school day during the next school year. Many of these 
    children will be suspended on more than one occasion for one or more 
    days. Because of the differences among the children who are expected to 
    be suspended and the range of their service needs, the costs of and the 
    burden associated with providing individualized services in an 
    alternative setting to every child who is suspended for one or more 
    school days could be substantial, especially for small districts, who 
    are expected to suspend about 8,000 children with disabilities during 
    this school year.
        At the same time, the Secretary is concerned about the adverse 
    educational impact on a child who has been suspended for more than a 
    few days and on more than one occasion. In balancing these concerns, 
    the Secretary proposes an alternative that takes into account both 
    impacts. Schools will be relieved of the potential obligation to 
    provide services for a significant population of children who are 
    briefly suspended a few times during the course of the school year, and 
    required to anticipate possible service needs of children with chronic 
    or more serious behavioral problems who are repeatedly excluded from 
    school.
        Section 300.122(a)(3)--Exception to right to FAPE (Graduation)--
    Proposed paragraph (a)(3) provides that a student's right to FAPE ends 
    when the student has graduated with a regular high school diploma, but 
    not if the student graduates with some other certificate, such as a 
    certificate of attendance, or a certificate of completion. Given the 
    importance of a regular high school diploma for a student's post-school 
    experiences, including work and further education, the Secretary 
    believes that there is a significant benefit to children protected by 
    the Act to make clear that the expectation for children with 
    disabilities is the same as for nondisabled children. The impact of 
    this proposal, however, is difficult to assess. Many States, including 
    most of those that report a high number of children with disabilities 
    leaving school with a certificate of completion or some other 
    certificate that is not a regular high school diploma, indicate that 
    students with disabilities have the right to continue to work to earn a 
    regular high school diploma after receiving that certificate. Little 
    information is available to evaluate how many students who now can 
    return to school after receiving some other certificate of completion 
    do so, or how many would return to school under this proposal, although 
    several State directors of special education indicated that relatively 
    few students who now can return, do so. The Secretary anticipates that 
    there may be some small impact on small districts, but does not expect 
    it to be substantial, because of the likely small number of students 
    who would return and could not do so now.
        Section 300.139--Reporting on Assessments--Proposed 300.139 would 
    require SEA reports on wide-scale assessments to include children with 
    disabilities in aggregated results for all children to better ensure 
    accountability for results for all children. This proposed regulation 
    is expected to have a minimal impact on the cost of reporting 
    assessment results. It could increase the number of data elements 
    reported depending on whether States continue to report trend data for 
    a student population that does not include children with disabilities 
    to the extent required by section 300.138. There will be no impact on 
    small (or large) school districts since this requirement applies to 
    reports that are prepared by the State educational agency.
        Sections 300.142(f) and 303.520(e)--Program Income--These 
    provisions would specify that proceeds from public and private 
    insurance will not be treated by the Department as ``program income'' 
    under other regulations that limit how program income can be used. 
    Therefore, this proposal increases flexibility for State and local 
    agencies in using the proceeds from insurance.
        Section 300.156(b)--Annual Description of Part B Set-aside Funds--
    Proposed paragraph (b) provides that if a State's plans for the use of 
    its State level or State agency funds do not differ from those for the 
    prior year the State may submit a letter to that effect instead of 
    submitting a description of how the funds would be used. The effect of 
    this proposed regulation is inconsequential because it implements the 
    Department's long-standing interpretation that a letter is sufficient 
    in this case.
        Section 300.232(a)--Exception to the LEA Maintenance of Effort--
    Proposed paragraph (a) makes it clear that an LEA may only reduce 
    expenditures associated with departing personnel if those personnel are 
    replaced by qualified, lower-salaried personnel. Congress made its 
    intent clear in this regard in the Committee Report, which is quoted, 
    in part, in a Note following this proposed regulation. Allowing LEAs to 
    reduce their expenditures by not replacing departing personnel would 
    violate congressional intent and diminish special education services in 
    those districts.
        Section 300.342(c)--Use of IFSP--Proposed paragraph (c) would 
    require school districts to obtain written informed consent from 
    parents before using an IFSP instead of an IEP, which is based on an 
    explanation of the differences between the two documents. The proposed 
    regulation would impose a cost burden on districts in those States that 
    elect to allow parents to opt for the use of an IFSP instead of an IEP. 
    However, once a form is developed that explains the differences between 
    an IFSP and an IEP, the cost of providing this form to parents and 
    obtaining written consent are probably minimal, and are justified by 
    the benefits of ensuring that parents understand the role of the IEP in 
    providing access to the general education curriculum.
        Section 300.342(d)--Effective Date of IEP Requirements--Proposed 
    paragraph (d) would provide that IEPs are to meet the requirements of 
    the statute by July 1, 1998, which is the statutory effective date for 
    the new IEP requirements. Given the potential benefits to families and 
    schools of complying with these requirements, the Secretary believes 
    that implementation of these requirements should not depend on parents 
    exercising their rights or vary within and across districts and States. 
    The impact of this proposal is difficult to estimate because the cost 
    of complying includes both the one-time cost of providing all affected 
    parties with the information, training, and materials needed to 
    implement the new requirements appropriately and the
    
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    annual costs of complying with new IEP requirements such as including 
    the regular education teacher on the IEP team. The impact of these 
    costs on State and local agencies is increased the sooner these costs 
    are incurred.
        The Secretary anticipates some impact on small districts, but does 
    not expect it to be substantial because of the number of children 
    involved--about 150,000 children with disabilities in total.
        Section 300.344(b)--Including the Child in the IEP Meeting--
    Proposed paragraph (b) would require the school to invite students to 
    participate in IEP meetings if the meeting will include consideration 
    of transition services needs or transition services. The effect of this 
    provision is to give 14- and 15-year-olds, and in some cases, younger 
    students the opportunity to participate. The existing regulations have 
    required schools to invite students to meetings in which transition 
    services were to be discussed. These would include all students aged 16 
    years and older, and in some cases, younger students. The law has also 
    given other children when appropriate the opportunity to participate in 
    the IEP meeting. Therefore, in some cases, 14- and 15-year-olds may be 
    already participating. The Secretary believes that the costs of 
    notifying students about a meeting or trying to ensure that the 
    students' interests and preferences are accommodated are more than 
    justified by the benefits of including students in a discussion of 
    their own transition needs, including their planned course of study in 
    secondary school.
        Section 300.501(b)--Parental Access to Meetings--Proposed paragraph 
    (b) of section 300.501 would define when and how to provide notice to 
    parents of meetings in which they are entitled to participate. It would 
    further define what is meant by the term ``meeting.'' The Secretary 
    believes these proposed regulations impose the minimal requirements 
    necessary to implement the statute. The language in paragraph (b)(1) 
    helps to clarify what is required to provide parents with a meaningful 
    opportunity to attend meetings while the language in (b)(2) is designed 
    to reduce unnecessary burden by clarifying what constitutes a 
    ``meeting.''
        Section 300.501(c)--Placement Meetings--Paragraph (c) of 300.501 
    specifies that the procedures used to be to meet the new statutory 
    requirement of parental involvement in placement decisions. It provides 
    that the procedures used for parental involvement in IEP meetings also 
    be used for placement meetings. These include specific requirements 
    relating to notice, methods for involving parents in the meeting, and 
    recordkeeping of attempts to ensure their participation. Because in 
    many cases placement decisions will be made as part of IEP meetings, as 
    is already the case in most jurisdictions, the Secretary believes the 
    impact of this proposed regulation will be minimal. In those cases in 
    which placement meetings are conducted separately from the IEP 
    meetings, the Secretary believes the benefits of making substantial 
    efforts to secure the involvement of parents and provide for their 
    meaningful participation in any meeting to discuss their child's 
    placement more than justify the costs.
        Section 300.502(b) and (c)--Right to an Independent Evaluation--
    Proposed paragraph (b) would clarify language from the current 
    regulations that make it clear that if a parent requests an independent 
    educational evaluation (IEE), the agency must either initiate a due 
    process hearing to show that its evaluation is appropriate or provide 
    for an IEE at public expense. The Secretary interprets the provision 
    permitting parents to request an IEE to require the agency to take 
    action. This requirement at most represents a small burden for school 
    districts because if the agency did not take action, parents would be 
    free to request due process to compel action.
        Proposed paragraph (c) provides that a public agency may not impose 
    conditions or timelines related to obtaining an independent evaluation. 
    The Secretary believes that this requirement, which arguably limits the 
    flexibility of school districts, is critical to ensuring that school 
    districts do not find ways to circumvent the right provided by the IDEA 
    to parents to obtain an independent evaluation.
        Sections 300.503(b)(8) and 303.403(b)(4)--Notice to Parents 
    Regarding Complaint Procedures--These provisions require that the 
    required prior written notice to parents include information about how 
    to file a complaint under State complaint procedures. Because districts 
    are already required to provide a written notice to parents, the 
    Secretary estimates that the additional cost of adding this information 
    will be one-time and minimal. The burden on small districts could be 
    minimized if each SEA were to provide its LEAs with appropriate 
    language describing the State procedures for inclusion in the parental 
    notices. Making parents award of a low cost and less adversarial 
    mechanism that they can use to resolve disputes with school districts 
    should result in cost savings and more cooperative relationships 
    between parents and districts.
        Section 300.505 (a)(1)(iii) and (c)(2)--Parental Consent for 
    Reevaluation--Proposed paragraph (a)(1)(iii) would clarify that the new 
    statutory right of parents to consent to a reevaluation of their child 
    means parental consent prior to the administration of any test that is 
    needed as a part of a reevaluation. The Secretary does not believe that 
    the intent of this change was to require school districts to obtain 
    parental consent before reviewing existing data about the child and the 
    child's performance, an activity that school districts, as a matter of 
    good practice, should be engaged in on an on-going basis. That 
    interpretation would impose a significant burden on school districts 
    with little discernable benefit to the children served under these 
    regulations.
        Proposed paragraph (c)(2) would use the procedures that are in 
    current regulations dealing with inviting parents to IEP meetings as a 
    basis for defining what it means to undertake ``reasonable measures'' 
    in obtaining parental consent. The intent of the proposal is to 
    meaningfully operationalize the statutory right of parents to consent 
    to a reevaluation of their child. Given the importance of parental 
    involvement in all parts of the process, the Secretary believes that 
    any burden imposed by the proposed recordkeeping requirements is 
    justified by the benefits of securing parental consent to the 
    reevaluation.
        Section 300.506(c)--Impartial Mediation--Proposed paragraph (c) 
    would interpret the statutory requirement that mediation be conducted 
    by an impartial mediator to mean that a mediator may not be an employee 
    of an LEA or a State agency that is providing direct services to the 
    child and must not have a personal or professional conflict of 
    interest. The Secretary believes that, by definition, parents would not 
    regard an employee of the other party to the dispute to be impartial or 
    a person who has a personal or professional conflict of interest. The 
    Secretary believes providing for impartiality would help promote the 
    use of mediation, which is voluntary, and improve its overall 
    effectiveness in resolving disagreements. The impact of disallowing 
    these individuals from serving as mediators is not likely to have a 
    significant impact on States, given current practices. Many States 
    contract with private organizations to conduct their mediations. Others 
    use employees of the State educational agency, which, in most cases, is 
    not the agency providing direct services. Given
    
    [[Page 55062]]
    
    the significant benefits to children, families, and school districts of 
    expeditiously resolving disagreements without resort to litigation, the 
    Secretary concluded that benefits of this proposal easily justify any 
    cost or inconvenience to States.
        Section 300.506(d)(2)--Failure to Participate in Meeting--Proposed 
    paragraph (d)(2) would specify that a parent's failure to participate 
    in a meeting at which a disinterested person explains the benefits of 
    and encourages the use of mediation could not be used as a reason to 
    deny or delay the parent's right to a due process hearing. This change 
    is not likely to limit the benefits to school districts of mediation as 
    the Secretary believes that it is extremely unlikely that parents who 
    are unwilling to participate in such a meeting with a disinterested 
    person would be willing to engage in the voluntary mediation provided 
    for in the statute.
        Section 300.507(c)(4)--Failure to Provide Notice--Proposed 
    paragraph (c)(4) makes it clear that failure by parents to provide the 
    notice required by the statute cannot be used by a school district to 
    delay or deny the parents' right to due process. This proposed 
    regulation would eliminate the possibility that public agencies will 
    delay a due process hearing pending receipt of a notice that they deem 
    to be acceptable. This regulation does not impose any cost on school 
    districts and would help ensure that parents are afforded appropriate 
    and timely access to due process.
        Section 300.513(b)--Attorneys' Fees--Proposed paragraph (b) would 
    provide that funds provided under Part B of IDEA could not be used to 
    pay attorneys' fees. This proposal does not increase the burden on 
    school districts or otherwise substantially affect the ability of 
    school districts to pay attorneys' fees that are awarded under the Act 
    or to pay for their own attorneys. It merely establishes that 
    attorneys' fees must be paid by a source of funding other than Part B 
    based on the Department's position that limited Federal resources not 
    be used for these costs. The Secretary does not expect this proposal to 
    have a cost impact on small (or large) districts because all districts 
    have non-Federal sources of funding that are significantly greater than 
    the funding provided under IDEA. Currently, funds provided to States 
    under the IDEA represent about eight percent of special education 
    expenditures.
        Section 300.514(c)--Hearing Officer Decisions--Proposed 300.514(c) 
    would clarify that if a hearing officer in a due process hearing or a 
    review official in a State level review agrees with the parents that a 
    change in placement is appropriate, the child's placement must be 
    treated in accordance with that agreement. It is difficult to assess 
    the impact of this proposal because the statutory language is 
    ambiguous. If paragraph (c) were not included in the regulation. In 
    some cases, parents can be expected to successfully argue, as they have 
    in the past, that the hearing officer's decision to change the 
    placement of a child be implemented. In other cases, as was the case in 
    Board of Education Sacramento Unified School District v. Holland (9th 
    Cir., 1994), a change to the placement initially sought by the parents 
    and approved by the hearing officer may not occur until all appeals 
    have been exhausted. The cost impact of this proposal is also 
    indeterminate because in some cases implementation of the hearing 
    officer's decision will result in moving children to more costly 
    placements and, in other cases, to less costly placements. In either 
    case, the Secretary concluded that the benefits to the child of 
    securing an appropriate placement justify any potential increase in 
    costs or other burdens to the school district.
        The Secretary estimates that the effect of this proposal on small 
    districts will be minimal. The Secretary estimates that no more than 
    2000 due process hearings will be conducted during the next school 
    year, of which only a small proportion are expected to involve small 
    districts (fewer than 60). Not all of these will involve disputes about 
    placement and the hearing officer or State review official can be 
    expected to agree with the parents in only a portion of the cases.
        Section 300.520 (b) and (c)--Behavioral Interventions--Proposed 
    paragraph (b) of this section would specify that the IEP team meeting 
    to consider behavioral interventions occur within 10 business days of 
    the behavior that leads to discipline rather than 10 calendar days, and 
    would clarify that, if the child does not have a behavior intervention 
    plan, the purpose of the meeting is to develop an assessment plan and 
    appropriate behavioral interventions to address that behavior. In 
    proposing the business day alternative, the Secretary determined that 
    it would minimize the burden on school districts and would not have a 
    significant impact on children with disabilities, in light of other 
    regulatory proposals in the discipline area. The change to clarify that 
    the IEP meeting develop appropriate behavioral interventions to address 
    the child's behavior may impose some additional burden on school 
    districts, but the Secretary determined that burden was justified by 
    the benefit to the child, the child's teacher, and the educational 
    process as a whole if appropriate behavioral intervention strategies 
    are implemented without delay to address the behavior that led to 
    discipline.
        Proposed paragraph (c) of section 300.520 makes it clear that if a 
    child is removed from his or her current placement for 10 school days 
    or fewer in a given year, the school is not required to convene the IEP 
    team to develop an assessment plan and behavioral interventions. (A 
    school would be required to do so if a child were suspended for more 
    than 10 school days in a given school year.) In determining whether to 
    regulate on this issue, the Secretary considered the potential benefits 
    of providing behavioral interventions to children who need them and the 
    impact on school districts of convening the IEP team to develop 
    behavioral interventions if children are suspended.
        Based on consideration of the costs and benefits to children and 
    schools, the Secretary concluded that the IEP team should not be 
    required to meet and develop or review behavioral interventions for a 
    child unless the child was engaged in repeated or significant 
    misconduct. The Secretary determined that the costs and burden of 
    convening the team the first time a child is suspended outweigh any 
    potential benefits to the child if the child is receiving a short-term 
    suspension for an infraction. However, the Secretary also considered 
    the significant benefits that early intervention can produce for 
    students and schools by effectively addressing behavioral problems. The 
    Secretary concluded that if a child is engaged in behavior that 
    warrants removal for more than 10 school days in a given year, 
    intervention is in order.
        The Secretary believes that this proposal may reduce costs for 
    school districts because, in the absence of a regulation on this issue, 
    the statute will be read by some to require that the IEP team be 
    convened to develop an assessment plan the first time a child is 
    suspended, regardless of the duration of the suspension or the child's 
    disciplinary record. Alternatively, the statute could be read, in the 
    absence of regulation, to require the IEP team to be convened only for 
    suspensions that exceed 10 school days at a time.
        Little data are available that would permit the Secretary to assess 
    the economic impact of this proposal on school districts or the number 
    of children who will benefit. Based on data collected by the Office for 
    Civil Rights, the Secretary estimates that
    
    [[Page 55063]]
    
    approximately 300,000 children with disabilities will be suspended 
    during the next school year for at least one school day. Based on an 
    analysis of State-reported data from selected States, we estimate that 
    most of the children who are suspended receive only short-term 
    suspensions, but we have no information on the length or frequency of 
    individual suspensions.
        Section 300.521--Due Process Hearing for Removal--Proposed 300.521 
    specifies that a hearing officer is to make the determination 
    authorized by section 615(k)(2) of the IDEA (regarding whether a 
    child's current educational placement is substantially likely to result 
    in injury to self or others) in a due process hearing.
        The Secretary concluded that a hearing that meets the requirement 
    for a due process hearing is the most appropriate forum for 
    expeditiously and fairly determining whether the district has 
    demonstrated by substantial evidence (defined by statute as ``beyond a 
    preponderance of the evidence'') that maintaining the current placement 
    is substantially likely to result in injury and to consider the 
    appropriateness of the child's current placement and the efforts of the 
    district to minimize the risk of harm.
        The Secretary believes that the cost impact of this proposed 
    regulation on large and small districts will be minimal because of the 
    limited number of cases in which school districts and parents will 
    disagree about the proposed removal of a dangerous child. (If the 
    parents agree to removing a child, a school district may do so without 
    the approval of a hearing officer.) In those few cases in which there 
    is disagreement, the Secretary believes that the benefits of conducting 
    a due process hearing justify the costs.
        Section 300.523--Manifestation Determination--Proposed paragraph 
    (b) would make it clear that if a child was removed for 10 or fewer 
    school days in a given school year, and no further disciplinary action 
    is contemplated, the school is not required to conduct a manifestation 
    review. As was the case in considering section 300.520(c), the 
    Secretary considered the potential benefits to the child and impact on 
    districts of convening the IEP team if children are suspended.
        The Secretary similarly concluded that the IEP team should not be 
    required to meet and determine whether the child's behavior was a 
    manifestation of the disability unless the child was engaged in 
    repeated or significant misconduct. The cost of convening the team, 
    whether to develop a behavioral assessment or to conduct a 
    manifestation review, outweigh the potential benefits to a child who 
    has been briefly suspended a few times. However, in proposing this 
    regulation, the Secretary also considered the adverse impact on the 
    child if the child is repeatedly suspended without any effort to 
    determine whether the child should be punished for his or her behavior. 
    One of the primary purposes of the manifestation review is to determine 
    whether the child's disability has impaired his or her ability to 
    understand the impact and consequences of his or her behavior and 
    whether the child's disability has impaired the child's ability to 
    control the behavior subject to discipline. Conducting this review, 
    along with the behavioral assessment, will help ensure that the 
    district responds appropriately to the child's behavior.
        The Secretary believes that this proposal may reduce costs for 
    school districts to the extent the statute is being read by some to 
    require a manifestation review every time a child is suspended. 
    Alternatively, this proposal may limit flexibility to the extent the 
    statute could be read not to require a review for any single suspension 
    that is fewer than 10 school days.
        Section 300.528--Procedures for an Expedited Due Process Hearing--
    Proposed 300.528 defines what an expedited due process hearing to 
    remove a dangerous child must entail. As discussed, the Secretary does 
    not believe the requirement for the hearing officer to conduct a due 
    process hearing to have a substantial cost impact because of the small 
    number of cases involved. In proposing this regulation, the Secretary 
    attempted to provide some flexibility to the States in establishing 
    timelines and procedures in order to accommodate the interests of 
    school officials in obtaining an expeditious decision. However, the 
    Secretary has little basis for projecting the cost of hearings 
    conducted in accordance with the proposed regulations in comparison to 
    other appropriate procedures.
        Section 300.587--Procedures for Enforcement--This proposal would 
    clarify the types of notice and hearing that the Department would 
    provide before taking an enforcement action under Part B of the IDEA. 
    Providing clarity about the applicable procedures for the various types 
    of enforcement actions will benefit potential subjects of enforcement 
    actions and the Department by ensuring that time and resources are not 
    spent on unnecessary disputes about procedures or needless process.
        Section 300.589--Waiver Procedures--This proposal describes the 
    procedures to be used by the Secretary in considering a request from an 
    SEA of a waiver of the supplement, not supplant and maintenance of 
    effort requirements in IDEA. This proposed regulation does not impose 
    any cost on local school districts. The proposed procedures will affect 
    any State requesting a waiver under Part B. While the Secretary 
    believes the benefits of the proposed process to children with 
    disabilities justify any possible cost or burden for State educational 
    agencies, the Secretary welcomes public comment on the impact of this 
    proposal and alternative ways for the Secretary to implement these 
    statutory provisions.
        Section 300.624--Capacity-building Subgrants--This proposal would 
    make it clear that States could establish priorities in awarding these 
    subgrants. This proposal, which provides permissive authority to be 
    used at the discretion of each State, clarifies the intent of the 
    statutory change and imposes no burden on State agencies. Allowing 
    States to use these funds to foster State-specific improvements should 
    lead to improving educational results for children with disabilities.
        Sections 300.660(b) and 303.510(b)--Information about State 
    Complaint Procedures--Proposed paragraph (b) would require States to 
    widely disseminate their complaint procedures. While this proposed 
    requirement would increase costs for those State educational agencies 
    that have not established procedures for widely disseminating this 
    information, the Secretary could have prescribed specific mechanisms 
    for this dissemination but chooses not to, in order to give SEAs 
    flexibility in determining how to accomplish this. The requirement 
    would not have any direct impact on small districts and would benefit 
    parents who believe that a public agency is violating a requirement of 
    these regulations, by providing them the information they would need to 
    get an official resolution of their issue without having to resort to a 
    more formal, and generally more costly, dispute resolution mechanism.
        Sections 300.661 and 303.512--Secretarial Review--This proposal 
    would delete the provision providing for Secretarial review of 
    complaints filed under State complaint procedures. The effect of this 
    proposal on small (and large) districts would be inconsequential 
    because of the small number of requests for these reviews. This 
    proposal was developed in recognition of the report of the Department's 
    Inspector General of August 1997, that noted that this procedure 
    provides very limited benefits to children with disabilities or
    
    [[Page 55064]]
    
    to the IDEA programs and involves a considerable expenditure of the 
    resources of the Office of Special Education Programs and other offices 
    of the Department. The Inspector General's report concluded that 
    greater benefit to the programs and individuals covered by the IDEA 
    would be achieved if the Department eliminated the Secretarial review 
    process and focused on improving State procedures for resolving 
    complaints and implementing the IDEA programs. This change, and the 
    changes proposed in Secs. 300.660(b) and 300.503(b)(8) and 
    Secs. 303.510(b) and 303.403(b)(4) that would require greater public 
    notice about the State complaint procedures, would implement those 
    recommendations.
        Sections 300.662 and 303.511--State Reviews--This proposal would 
    relieve States of the requirement to review complaints about violations 
    that occurred more than three years before the complaint. This proposed 
    limitation on the age of the complaints is expected to reduce the cost 
    to SEAs of investigating and reviewing complaints. There is no reason 
    to believe this proposal would adversely affect small districts. There 
    is also no reason to expect that this proposal would have a significant 
    negative impact on individuals or entities submitting complaints under 
    these procedures as it is unlikely that complaints alleging a violation 
    that occurred more than three years in the past and that do not allege 
    a continuing violation or request compensatory services would result in 
    an outcome that puts the protected individuals under these regulations 
    in a better position than they would have been in if no complaint had 
    been filed. On the other hand, allowing States to focus their complaint 
    resolution procedures on issues that are relevant to the current 
    operation of the State's special education program may serve to improve 
    services for these children.
    
    2. Clarity of the Regulations
    
        Executive Order 12866 requires each agency to write regulations 
    that are easy to understand.
        The Secretary invites comments on how to make these proposed 
    regulations easier to understand, including answers to questions such 
    as the following: (1) Are the requirements in the proposed regulations 
    clearly stated? (2) Do the proposed regulations contain technical terms 
    or other wording that interfere with their clarity? (3) Does the format 
    of the proposed regulations (grouping and order of sections, use of 
    headings, paragraphing, etc.) aid or reduce their clarity? Would the 
    proposed regulations be easier to understand if they were divided into 
    more (but shorter) sections? (A ``section'' is preceded by the symbol 
    ``Sec. '' and a numbered heading; for example, Sec. 300.2 Applicability 
    to State, local, and private agencies.) (4) Is the description of the 
    proposed regulations in the ``Supplementary Information'' section of 
    this preamble helpful in understanding the proposed regulations? How 
    could this description be more helpful in making the proposed 
    regulations easier to understand? (5) What else could the Department do 
    to make the proposed regulations easier to understand?
        A copy of any comments that concern how the Department could make 
    these proposed regulations easier to understand should be sent to 
    Stanley M. Cohen, Regulations Quality Officer, U.S. Department of 
    Education, 600 Independence Avenue, SW. (room 5121, FB-10), Washington, 
    DC 20202-2241.
    
    Regulatory Flexibility Act Certification
    
        The Secretary certifies that these proposed regulations would not 
    have a significant economic impact on a substantial number of small 
    entities.
        The small entities that would be affected by these proposed 
    regulations are small local educational agencies (LEAs) receiving 
    Federal funds under this program. However, the regulations would not 
    have a significant economic impact on the small LEAs affected because 
    the regulations would not impose excessive regulatory burdens or 
    require unnecessary Federal supervision. The regulations would impose 
    minimal requirements to ensure the proper expenditure of program funds.
    
    Paperwork Reduction Act of 1995
    
        Sections 300.110, 300.121, 300.123-300.130, 300.133, 300.135-
    300.137, 300.141-300.145, 300.155-300.156, 300.180, 300.192, 300.220-
    300.221, 300.240, 300.280-300.281, 300.284, 300.341, 300.343, 300.345, 
    300.347, 300.380-300.382, 300.402, 300.482-300.483, 300.503-300.504, 
    300.506, 300.508, 300.510-300.511, 300.532, 300.535, 300.543, 300.561-
    300.563, 300.565, 300.569, 300.571-300.572, 300.574-300.575, 300.589, 
    300.600, 300.653, 300.660-300.662, 300.750-300.751, 300.754, 303.403, 
    303.510-303.512, and 303.520 contain information collection 
    requirements. As required by the Paperwork Reduction Act of 1995 (44 
    U.S.C. 3507(d)), the Department of Education has submitted a copy of 
    these sections to the Office of Management and Budget (OMB) for its 
    review.
        Collection of Information: Assistance for Education of All Children 
    with Disabilities: Complaint Procedures, Secs. 300.600-300.662 and 
    303.510-303.512. Each SEA is required to adopt written procedures for 
    resolving any complaint that meets the requirements in these proposed 
    regulations.
        Annual reporting and recordkeeping burden for this collection of 
    information is estimated to average 10 hours to issue a written 
    decision to a complaint. There is an estimated average annual total of 
    1079 complaints submitted for processing. Thus, the total annual 
    reporting and recordkeeping burden for this collection is estimated to 
    be 10,790 hours.
        Collection of Information: Assistance for Education of All Children 
    with Disabilities: State Eligibility, Secs. 300.110, 300.121, 300.123-
    300.130, 300.133, 300.135-300.137, 300.141-300.145, 300.155-300.156, 
    300.280-300.281, 300.284, 300.380-300.382, 300.402, 300.482-300.483, 
    300.510-300.511, 300.589, 300.600, 300.653, 303.403, and 303.520. Each 
    State must have on file with the Secretary policies and procedures to 
    demonstrate to the satisfaction of the Secretary that the State meets 
    the specified conditions for assistance under this part. In the past, 
    States were required to submit State plans every three years with one-
    third of the entities submitting plans to the Secretary each year. With 
    the new statute, States will no longer be required to submit State 
    plans. Rather, the policies and procedures currently approved by, and 
    on file with, the Secretary that are not inconsistent with the IDEA 
    Amendments of 1997 will remain in effect unless amended.
        Annual reporting and recordkeeping burden for this collection of 
    information is estimated to average 30 hours for each response for 58 
    respondents, including the time for reviewing instructions, searching 
    existing data sources, gathering and maintaining the data needed, and 
    completing and reviewing the collection of information. Thus, the total 
    annual reporting and recordkeeping burden for this collection is 
    estimated to be 1740 hours.
        Collection of Information: Assistance for Education of All Children 
    with Disabilities: LEA Eligibility, Secs. 300.180, 300.192, 300.220-
    300.221, 300.240, 300.341, 300.343, 300.345, 300.347, 500.503-300.504, 
    300.532, 300.535, 300.543, 300.561-300.563, 300.565, 300.569, 300.571-
    300.572, and 300.574-300.575. Each local educational agency (LEA) and 
    each State agency must have on file with the State educational agency 
    (SEA) information to demonstrate that the agency meets the specified 
    requirements for assistance under this part. In the past, each LEA
    
    [[Page 55065]]
    
    was required to submit a periodic application to the SEA in order to 
    establish its eligibility for assistance under this part. Under the new 
    statutory changes, LEAs are no longer required to submit such 
    applications. Rather, the policies and procedures currently approved 
    by, and on file with, the SEA that are not inconsistent with the IDEA 
    Amendments of 1997 will remain in effect unless amended.
        Annual reporting and recordkeeping burden for this collection of 
    information is estimated to average 2 hours for each response for 
    15,376 respondents, including the time for reviewing instructions, 
    searching existing data sources, gathering and maintaining the data 
    needed, and completing and reviewing the collection of information. 
    Thus, the total annual reporting and recordkeeping burden for this 
    collection is estimated to be 30,752 hours. The Secretary invites 
    comment on the estimated time it wills take for LEAs to meet this 
    reporting and recordkeeping requirement.
        Collection of Information: Assistance for Education of All Children 
    with Disabilities: List of Hearing Officers and Mediators, 
    Secs. 300.506 and 300.508. Each State must maintain a list of 
    individuals who are qualified mediators and knowledgeable in laws and 
    regulations relating to the provision of special education and related 
    services. Each public agency must, also, keep a list of the persons who 
    serve as hearing officers.
        Annual reporting and recordkeeping burden for this collection of 
    information is estimated to average 25 hours for each response for 58 
    respondents, including the time for reviewing instructions, searching 
    existing data sources, gathering and maintaining the data needed, and 
    completing and reviewing the collection of information. Thus, the total 
    annual reporting and recordkeeping burden for this collection is 
    estimated to be 3050 hours.
        Collection of Information: Assistance for Education of All Children 
    with Disabilities: Report of Children and Youth with Disabilities 
    Receiving Special Education, Secs. 300.750-300.751, and 300.754. Each 
    SEA must submit an annual report of children served.
        Annual reporting and recordkeeping burden for this collection of 
    information is estimated to average 262 hours for each response for 58 
    respondents, including the time for reviewing instructions, searching 
    existing data sources, gathering and maintaining the data needed, and 
    completing and reviewing the collection of information. Thus, the total 
    annual reporting and recordkeeping burden for this collection is 
    estimated to be 15,196 hours.
        Organizations and individuals desiring to submit comments on the 
    information collection requirements should direct them to the Office of 
    Information and Regulatory Affairs, OMB, room 10235, New Executive 
    Office Building, Washington, DC 20503; Attention: Desk Officer for U.S. 
    Department of Education.
        The Department considers comments by the public on these proposed 
    collections of information in--
         Evaluating whether the proposed collections of information 
    are necessary for the proper performance of the functions of the 
    Department, including whether the information will have practical 
    utility;
         Evaluating the accuracy of the Department's estimate of 
    the burden of the proposed collections of information, including the 
    validity of the methodology and assumptions used;
         Enhancing the quality, usefulness, and clarity of the 
    information to be collected; and
         Minimizing the burden of the collection of information on 
    those who are to respond, including through the use of appropriate 
    automated, electronic, mechanical, or other technological collection 
    techniques or other forms of information technology; e.g., permitting 
    electronic submission of responses.
        OMB is required to make a decision concerning the collections of 
    information contained in these proposed regulations between 30 and 60 
    days after publication of this document in the Federal Register. 
    Therefore, a comment to OMB is best assured of having its full effect 
    if OMB receives it within 30 days of publication. This does not affect 
    the deadline for the public to comment to the Department on the 
    proposed regulations.
    
    Intergovernmental Review
    
        This program is subject to the requirements of Executive Order 
    12372 and the regulations in 34 CFR part 79. The objective of the 
    Executive order is to foster an intergovernmental partnership and a 
    strengthened federalism by relying on processes developed by State and 
    local governments for coordination and review of proposed Federal 
    financial assistance.
        In accordance with the order, this document is intended to provide 
    early notification of the Department's specific plans and actions for 
    this program.
    
    Assessment of Educational Impact
    
        The Secretary particularly requests comments on whether the 
    proposed regulations in this document would require transmission of 
    information that is being gathered by or is available from any other 
    agency or authority of the United States.
        Anyone may also view this document, as well as all other Department 
    of Education documents published in the Federal Register, in text or 
    portable document format (pdf) on the World Wide Web at either of the 
    following sites:
    
    http://gcs.ed.gov/fedreg.htm
    http://www.ed.gov/news.html
    
        To use the pdf you must have the Adobe Acrobat Reader Program with 
    Search, which is available free at either of the previous sites. If you 
    have questions about using the pdf, call the U.S. Government Printing 
    Office toll free at 1-888-293-6498.
        Anyone may also view these documents in text copy only on an 
    electronic bulletin board of the Department. Telephone: (202) 219-1511 
    or, toll free, 1-800-222-4922. The documents are located under Option 
    G--Files/Announcements, Bulletins and Press Releases.
    
        Note: The official version of this document is the document 
    published in the Federal Register.
    
    List of Subjects
    
    34 CFR Part 300
    
        Administrative practice and procedure, Education of individuals 
    with disabilities, Elementary and secondary education, Equal 
    educational opportunity, Grant programs--education, Privacy, Private 
    schools, Reporting and recordkeeping requirements.
    
    34 CFR Part 301
    
        Education of individuals with disabilities, Elementary and 
    secondary education, Grant programs--education, Infants and children, 
    Reporting and recordkeeping requirements.
    
    34 CFR Part 303
    
        Education of individuals with disabilities, Grant programs--
    education, Infants and children, Reporting and recordkeeping 
    requirements.
    
    (Catalog of Federal Domestic Assistance Number: 84.027 Assistance 
    for the Education of All Children with Disabilities, 84.173 
    Preschool Grants for Children with Disabilities, and 84.181 Early 
    Intervention Program for Infants and Toddlers with Disabilities)
    
    
    [[Page 55066]]
    
    
        Dated: October 6, 1997.
    Richard W. Riley,
    Secretary of Education.
    
        The Secretary proposes to amend Title 34 of the Code of Federal 
    Regulations by revising parts 300, 301, and 303 as follows:
        1. Part 300 is revised to read as follows:
    
    PART 300--ASSISTANCE FOR EDUCATION OF ALL CHILDREN WITH 
    DISABILITIES
    
    Subpart A--General
    
    Purposes, Applicability, and Regulations That Apply to This Program
    
    Sec.
    300.1  Purposes.
    300.2  Applicability to State, local, and private agencies.
    300.3  Regulations that apply.
    300.4  Act.
    300.5  Assistive technology device.
    300.6  Assistive technology service.
    300.7  Child with a disability.
    300.8  Day.
    300.9  Educational service agency.
    300.10  Equipment.
    300.11  Free appropriate public education.
    300.12  General curriculum.
    300.13  Include.
    300.14  Individualized education program.
    300.15  Individualized education program team.
    300.16  Individualized family service plan.
    300.17  Local educational agency.
    300.18  Native language.
    300.19  Parent.
    300.20  Public agency.
    300.21  Qualified.
    300.22  Related services.
    300.23  Secondary school.
    300.24  Special education.
    300.25  State.
    300.26  Supplementary aids and services.
    300.27  Transition services.
    300.28  Definitions in EDGAR.
    
    Subpart B--State and Local Eligibility--General
    
    State Eligibility--General
    
    300.110  Condition of assistance.
    300.111  Exception for prior State policies and procedures on file 
    with the Secretary.
    300.112  Amendments to State policies and procedures.
    300.113  Approval by the Secretary.
    
    State Eligibility--Specific Conditions
    
    300.121  Free appropriate public education (FAPE).
    300.122  Exception to FAPE for certain ages.
    300.123  Full educational opportunity goal (FEOG).
    300.124  FEOG--timetable.
    300.125  Child find.
    300.126  Procedures for evaluation and determination of eligibility.
    300.127  Confidentiality of personally identifiable information.
    300.128  Individualized education programs.
    300.129  Procedural safeguards.
    300.130  Least restrictive environment.
    300.131  [Reserved]
    300.132  Transition of children from Part C to preschool programs.
    300.133  Children in private schools.
    300.134  [Reserved]
    300.135  Comprehensive system of personnel development.
    300.136  Personnel standards.
    300.137  Performance goals and indicators.
    300.138  Participation in assessments.
    300.139  Reports relating to assessments.
    300.140  [Reserved]
    300.141  SEA responsibility for general supervision.
    300.142  Methods of ensuring services.
    300.143  SEA implementation of procedural safeguards.
    300.144  Hearings relating to LEA eligibility.
    300.145  Recovery of funds for misclassified children.
    300.146  Suspension and expulsion rates.
    300.147  Additional information if SEA provides direct services.
    300.148  Public participation.
    300.149  [Reserved]
    300.150  State advisory panel.
    300.151  [Reserved]
    300.152  Prohibition against commingling.
    300.153  State-level nonsupplanting.
    300.154  Maintenance of State financial support.
    300.155  Policies and procedures for use of Part B funds.
    300.156  Annual description of use of Part B funds.
    
    LEA and State Agency Eligibility--General
    
    300.180  Condition of assistance.
    300.181  Exception for prior LEA or State agency policies and 
    procedures on file with the SEA.
    300.182  Amendments to LEA policies and procedures.
    300.183  [Reserved]
    300.184  Excess cost requirement.
    300.185  Meeting the excess cost requirement.
    300.186-300.189  [Reserved]
    300.190  Joint establishment of eligibility.
    300.191  [Reserved]
    300.192  Requirements for establishing eligibility.
    300.193  [Reserved]
    300.194  State agency eligibility.
    300.195  [Reserved]
    300.196  Notification of LEA or State agency in case of 
    ineligibility.
    300.197  LEA and State agency compliance.
    
    LEA Eligibility--Specific Conditions
    
    300.220  Consistency with State policies.
    300.221  LEA and State agency implementation of CSPD.
    300.222-300.229  [Reserved]
    300.230  Use of amounts.
    300.231  Maintenance of effort.
    300.232  Exception to maintenance of effort.
    300.233  Treatment of federal funds in certain fiscal years.
    300.234  Schoolwide programs under title I of the ESEA.
    300.235  Permissive use of funds.
    300.236-300.239  [Reserved]
    300.240  Information for SEA.
    300.241  Treatment of charter schools and their students.
    300.242  Public information.
    300.243  [Reserved]
    300.244  Coordinated services system.
    300.245  School-based improvement plan.
    300.246  Plan requirements.
    300.247  Responsibilities of the LEA.
    300.248  Limitation.
    300.249  Additional requirements.
    300.250  Extension of plan.
    
    Secretary of the Interior--Eligibility
    
    300.260  Submission of information.
    300.261  Public Participation.
    300.262  Use of Part B funds.
    300.263  Plan for coordination of services.
    300.264  Definitions.
    300.265  Establishment of advisory board.
    300.266  Annual reports.
    300.267  Applicable regulations.
    
    Public Participation
    
    300.280  Public hearings before adopting State policies and 
    procedures.
    300.281  Notice.
    300.282  Opportunity to participate; comment period.
    300.283  Review of public comments before adopting policies and 
    procedures.
    300.284  Publication and availability of approved policies and 
    procedures.
    
    Subpart C--Services
    
    Free Appropriate Public Education
    
    300.300  Provision of FAPE.
    300.301  FAPE--methods and payments.
    300.302  Residential placement.
    300.303  Proper functioning of hearing aids.
    300.304  Full educational opportunity goal.
    300.305  Program options.
    300.306  Nonacademic services.
    300.307  Physical education.
    300.308  Assistive technology.
    300.309  Extended school year services.
    300.310  [Reserved]
    300.311  FAPE requirements for students with disabilities in adult 
    prisons.
    
    Evaluations and Reevaluations 300.320 Initial evaluations.
    
    300.321  Reevaluations.
    300.322-300.324  [Reserved]
    
    Individualized Education Programs
    
    300.340  Definitions.
    300.341  SEA responsibility.
    300.342  When IEPs must be in effect.
    300.343  IEP Meetings.
    300.344  IEP team.
    300.345  Parent participation.
    300.346  Development, review, and revision of IEP.
    300.347  Content of IEP.
    300.348  Agency responsibilities for transition services.
    300.349  Private school placements by public agencies.
    300.350  Children with disabilities in religiously-affiliated or 
    other private schools.
    300.351  Individualized education program--accountability.
    
    Direct Services by SEA
    
    300.360  Use of LEA allocation for direct services.
    
    [[Page 55067]]
    
    300.361  Nature and location of services.
    300.362-300.369  [Reserved]
    300.370  Use of State agency allocations.
    300.371  [Reserved]
    300.372  Applicability of nonsupplanting requirement.
    
    Comprehensive System of Personnel Development
    
    300.380  General.
    300.381  Adequate supply of qualified personnel.
    300.382  Improvement strategies.
    300.383-300.387  [Reserved]
    
    Subpart D--Children in Private Schools
    
    Children with Disabilities in Private Schools Placed or Referred by 
    Public Agencies
    
    300.400  Applicability of Secs. 300.400--300.402.
    300.401  Responsibility of State educational agency.
    300.402  Implementation by State educational agency.
    300.403  Placement of children by parents if FAPE is at issue.
    
    Children With Disabilities Enrolled by Their Parents in Private Schools
    
    300.450  Definition of ``private school children with 
    disabilities.''
    300.451  Child find for private school children with disabilities.
    300.452  Basic requirement--services.
    300.453  Expenditures.
    300.454  Services determined.
    300.455  Services provided.
    300.456  Location of services.
    300.457  Complaints.
    300.458  Separate classes prohibited.
    300.459  Requirement that funds not benefit a private school.
    300.460  Use of public school personnel.
    300.461  Use of private school personnel.
    300.462  Requirements concerning property, equipment and supplies 
    for the benefit of private school children with disabilities.
    
    Procedures for By-Pass
    
    300.480  By-pass--general.
    300.481  Provisions for services under a by-pass.
    300.482  Notice of intent to implement a by-pass.
    300.483  Request to show cause.
    300.484  Show cause hearing.
    300.485  Decision.
    300.486  Filing requirements.
    300.487  Judicial review.
    
    Subpart E--Procedural Safeguards
    
    Due Process Procedures for Parents and Children
    
    300.500  General responsibility of public agencies; definitions.
    300.501  Opportunity to examine records; parent participation in 
    meetings.
    300.502  Independent educational evaluation.
    300.503  Prior notice by the public agency; content of notice.
    300.504  Procedural safeguards notice.
    300.505  Parental consent.
    300.506  Mediation.
    300.507  Impartial due process hearing; parent notice; disclosure.
    300.508  Impartial hearing officer.
    300.509  Hearing rights.
    300.510  Finality of decision; appeal; impartial review.
    300.511  Timelines and convenience of hearings and reviews.
    300.512  Civil action.
    300.513  Attorneys' fees.
    300.514  Child's status during proceedings.
    300.515  Surrogate parents.
    300.516  [Reserved]
    300.517  Transfer of parental rights at age of majority.
    
    Discipline Procedures
    
    300.520  Authority of school personnel.
    300.521  Authority of hearing officer.
    300.522  Determination of setting.
    300.523  Manifestation determination review.
    300.524  Determination that behavior was not manifestation of 
    disability.
    300.525  Parent appeal.
    300.526  Placement during appeals.
    300.527  Protections for children not yet eligible for special 
    education and related services.
    300.528  Expedited due process hearings.
    300.529  Referral to and action by law enforcement and judicial 
    authorities.
    
    Procedures for Evaluation and Determination of Eligibility
    
    300.530  General.
    300.531  Initial evaluation.
    300.532  Evaluation procedures.
    300.533  Determination of needed evaluation data.
    300.534  Determination of eligibility.
    300.535  Procedures for determining eligibility and placement.
    300.536  Reevaluation.
    
    Additional Procedures for Evaluating Children With Specific Learning 
    Disabilities
    
    300.540  Additional team members.
    300.541  Criteria for determining the existence of a specific 
    learning disability.
    300.542  Observation.
    300.543  Written report.
    
    Least Restrictive Environment
    
    300.550  General.
    300.551  Continuum of alternative placements.
    300.552  Placements.
    300.553  Nonacademic settings.
    300.554  Children in public or private institutions.
    300.555  Technical assistance and training activities.
    300.556  Monitoring activities.
    
    Confidentiality of Information
    
    300.560  Definitions.
    300.561  Notice to parents.
    300.562  Access rights.
    300.563  Record of access.
    300.564  Records on more than one child.
    300.565  List of types and locations of information.
    300.566  Fees.
    300.567  Amendment of records at parent's request.
    300.568  Opportunity for a hearing.
    300.569  Result of hearing.
    300.570  Hearing procedures.
    300.571  Consent.
    300.572  Safeguards.
    300.573  Destruction of information.
    300.574  Children's rights.
    300.575  Enforcement.
    300.576  Disciplinary information.
    300.577  Department use of personally identifiable information.
    
    Department Procedures
    
    300.580  Determination by the Secretary that a State is eligible.
    300.581  Notice and hearing before determining that a State is not 
    eligible.
    300.582  Hearing official or panel.
    300.583  Hearing procedures.
    300.584  Initial decision; final decision.
    300.585  Filing requirements.
    300.586  Judicial review.
    300.587  Enforcement.
    300.588  [Reserved]
    300.589  Waiver of requirement regarding supplementing and not 
    supplanting with Part B funds.
    
    Subpart F--State Administration; General
    
    300.600  Responsibility for all educational programs.
    300.601  Relation of Part B to other Federal programs.
    300.602  State-level activities.
    
    Use of Funds
    
    300.620  Use of funds for State administration.
    300.621  Allowable costs.
    300.622  Subgrants to LEAs for capacity-building and improvement.
    300.623  Amount required for subgrants to LEAs.
    300.624  State discretion in awarding subgrants.
    
    State Advisory Panel
    
    300.650  Establishment of advisory panels.
    300.651  Membership.
    300.652  Advisory panel functions.
    300.653  Advisory panel procedures.
    
    State Complaint Procedures
    
    300.660  Adoption of State complaint procedures.
    300.661  Minimum State complaint procedures.
    300.662  Filing a complaint.
    
    Subpart G--Allocation of Funds; Reports
    
    Allocations
    
    300.700  Special definition of the term ``State.''
    300.701  Grants to States.
    300.702  Definitions.
    300.703  Allocations to States.
    300.704-300.705  [Reserved]
    300.706  Permanent formula.
    300.707  Increase in funds.
    300.708  Limitation.
    300.709  Decrease in funds.
    300.710  Allocation for State in which by-pass is implemented for 
    private school children with disabilities.
    300.711  Subgrants to LEAs.
    300.712  Allocations to LEAs.
    300.713  Former Chapter 1 State agencies.
    
    [[Page 55068]]
    
    300.714  Reallocation of LEA funds.
    300.715  Payments to the Secretary of the Interior for the education 
    of Indian children.
    300.716  Payments for education and services for Indian children 
    with disabilities aged 3 through 5.
    300.717  Outlying areas and freely associated States.
    300.718  Outlying area--definition.
    300.719  Limitation for freely associated States.
    300.720  Special rule.
    300.721  [Reserved]
    300.722  Definition.
    
    Reports
    
    300.750  Annual report of children served--report requirement.
    300.751  Annual report of children served--information required in 
    report.
    300.752  Annual report of children served--certification.
    300.753  Annual report of children served--criteria for counting 
    children.
    300.754  Annual report of children served--other responsibilities of 
    the State education agency.
    300.755  Disproportionality.
    300.756  Acquisition of equipment; construction or alteration of 
    facilities.
    
    Appendix A to Part 300--[Reserved]
    Appendix B to Part 300--[Reserved]
    Appendix C to Part 300--Notice of Interpretation
    
        Authority: 20 U.S.C. 1411-1420, unless otherwise noted.
        Subpart A--General
    
    Purposes, Applicability, and Regulations That Apply to This Program
    
    
    Sec. 300.1  Purposes.
    
        The purposes of this part are--
        (a) To ensure that all children with disabilities have available to 
    them a free appropriate public education that emphasizes special 
    education and related services designed to meet their unique needs and 
    prepare them for employment and independent living;
        (b) To ensure that the rights of children with disabilities and 
    their parents are protected;
        (c) To assist States, localities, educational service agencies, and 
    Federal agencies to provide for the education of all children with 
    disabilities; and
        (d) To assess, and ensure the effectiveness of, efforts to educate 
    children with disabilities.
    
    (Authority: 20 U.S.C. 1400 note)
    
        Note: With respect to paragraph (a) of this section (related to 
    preparing children with disabilities for employment and independent 
    living, section 701 of the Rehabilitation Act of 1973 describes the 
    philosophy of independent living as including a philosophy of 
    consumer control, peer support, self-help, self-determination, equal 
    access, and individual and system advocacy, in order to maximize the 
    leadership, empowerment, independence, and productivity of 
    individuals with disabilities, and the integration and full 
    inclusion of individuals with disabilities into the mainstream of 
    American society.
    
    
    Sec. 300.2  Applicability to State, local, and private agencies.
    
        (a) States. This part applies to each State that receives payments 
    under Part B of the Act.
        (b) Public agencies within the State. The provisions of this part 
    apply to all political subdivisions of the State that are involved in 
    the education of children with disabilities. These political 
    subdivisions include--
        (1) The State educational agency;
        (2) LEAs and educational service agencies;
        (3) Other State agencies and schools (such as Departments of Mental 
    Health and Welfare and State schools for students with deafness or 
    students with blindness); and
        (4) State and local juvenile and adult correctional facilities.
        (c) Private schools and facilities. Each public agency in the State 
    is responsible for ensuring that the rights and protections under Part 
    B of the Act are given to children with disabilities
        (1) Referred to or placed in private schools and facilities by that 
    public agency, or
        (2) Placed in private schools by their parents under the provisions 
    of Sec. 300.403(c).
    
        (Authority: 20 U.S.C. 1412)
    
        Note: The requirements of this part are binding on each public 
    agency that has direct or delegated authority to provide special 
    education and related services in a State that receives funds under 
    Part B of the Act, regardless of whether that agency is receiving 
    funds under Part B.
    
    
    Sec. 300.3  Regulations that apply.
    
        The following regulations apply to this program:
        (a) 34 CFR part 76 (State-Administered Programs) except for
        Secs. 76.125-76.137 and 76.650-76.662.
        (b) 34 CFR part 77 (Definitions).
        (c) 34 CFR part 79 (Intergovernmental Review of Department of 
    Education Programs and Activities).
        (d) 34 CFR part 80 (Uniform Administrative Requirements for Grants 
    and Cooperative Agreements to State and Local Governments).
        (e) 34 CFR part 81 (General Education Provisions Act--Enforcement).
        (f) 34 CFR part 82 (New Restrictions on Lobbying).
        (g) 34 CFR part 85 (Governmentwide Debarment and Suspension 
    (Nonprocurement) and Governmentwide Requirements for Drug-Free 
    Workplace (Grants)).
        (h) The regulations in this part--34 CFR part 300 (Assistance for 
    Education of Children with Disabilities).
    
    (Authority: 20 U.S.C. 1221e-3(a)(1))
    
    Definitions
    
        Note 1: Definitions of terms that are used throughout these 
    regulations are included in this Subpart. Other terms are defined in 
    the specific subparts in which they are used. A list of those terms 
    and the specific sections in which they are defined:
    Appropriate professional requirements in the State 
    (Sec. 300.136(a)(1))
    Average per-pupil expenditure in public elementary and secondary 
    schools in the United States (Sec. 300.702)
    Base year (Sec. 300.706(b)(1))
    Comparable quality (Sec. 300.455(c))
    Consent (Sec. 300.500(b)(1))
    Controlled Substance (Sec. 300.520(d)(1))
    Destruction (Sec. 300.560)
    Direct services (Sec. 300.370(b)(1))
    Education records (Sec. 300.560)
    Evaluation (Sec. 300.500(b)(2))
    Excess costs (Sec. 300.184(b))
    Extended school year services (Sec. 300.309(b))
    Financial costs (Sec. 300.142(e)(2))
    Freely associated States (Sec. 300.722)
    Highest requirements in the State applicable to a specific 
    profession or discipline (Sec. 300.136(a)(2))
    Illegal drug (Sec. 300.520(d)(2))
    Independent educational evaluation (Sec. 300.503(a)(3)(i))
    Indian (Sec. 300.264(a))
    Indian tribe (Sec. 300.264(b))
    Outlying area (Sec. 300.718)
    Participating agency, as used in the IEP requirements in 
    Secs. 300.347 and 300.348 (Sec. 300.340(b))
    Participating agency, as used in the confidentiality requirements in 
    Secs. 300.560-300.576(Sec. 300.340(b))
    Party or parties (Sec. 300.583(a))
    Personally identifiable (Sec. 300.500(b)(3))
    Private school children with disabilities (Sec. 300.450)
    Profession or discipline (Sec. 300.136(a)(3))
    Public expense (Sec. 300.502(a)(3)(ii))
    Revoke consent at any time (Sec. 300.500 note)
    State, special definition (Sec. 300.700)
    State-approved or recognized certification, licensing, registration, 
    or other comparable requirements (Sec. 300.136(a)(4))
    Substantial evidence (Sec. 300.521(e))
    Support services (Sec. 300.370(b)(2))
    Weapon (Sec. 300.520(d)(3))
    
        Note 2: The following abbreviations for selected terms are used 
    throughout these regulations: ``CSPD'' means ``comprehensive system 
    of personnel development.''
    
    ``ESA'' means ``education service agency.''
    ``FAPE'' means ``free appropriate public education.''
    ``IDEA'' means ``Individuals with Disabilities Education Act.''
    ``IEP'' means ``individualized education program.''
    ``IFSP'' means ``individualized family service plan.''
    ``LEA'' means ``Local educational agency.''
    
    [[Page 55069]]
    
    ``LRE'' means ``least restrictive environment.''
    ``SEA'' means ``State educational agency.''
    
        Each abbreviation is used interchangeably with its 
    nonabbreviated term.
    
    Sec. 300.4  Act.
    
        As used in this part, Act means the Individuals with Disabilities 
    Education Act, as amended (IDEA).
    
    (Authority: 20 U.S.C. 1400(a))
    
    
    Sec. 300.5  Assistive technology device.
    
        As used in this part, Assistive technology device means any item, 
    piece of equipment, or product system, whether acquired commercially 
    off the shelf, modified, or customized, that is used to increase, 
    maintain, or improve the functional capabilities of a child with a 
    disability.
    
    (Authority: 20 U.S.C. 1401(1))
    
    
    Sec. 300.6  Assistive technology service.
    
        As used in this part, Assistive technology service means any 
    service that directly assists a child with a disability in the 
    selection, acquisition, or use of an assistive technology device. The 
    term includes--
        (a) The evaluation of the needs of a child with a disability, 
    including a functional evaluation of the child in the child's customary 
    environment;
        (b) Purchasing, leasing, or otherwise providing for the acquisition 
    of assistive technology devices by children with disabilities;
        (c) Selecting, designing, fitting, customizing, adapting, applying, 
    maintaining, repairing, or replacing assistive technology devices;
        (d) Coordinating and using other therapies, interventions, or 
    services with assistive technology devices, such as those associated 
    with existing education and rehabilitation plans and programs;
        (e) Training or technical assistance for a child with a disability 
    or, if appropriate, that child's family; and
        (f) Training or technical assistance for professionals (including 
    individuals providing education or rehabilitation services), employers, 
    or other individuals who provide services to, employ, or are otherwise 
    substantially involved in the major life functions of that child.
    
    (Authority: 20 U.S.C. 1401(2))
    
        Note: The Act's definitions of ``Assistive technology device'' 
    and ``Assistive technology service'' are substantially identical to 
    the definitions of these terms used in the Technology-Related 
    Assistance for Individuals with Disabilities Act of 1988.
    
    
    Sec. 300.7  Child with a disability.
    
        (a) (1) As used in this part, the term child with a disability 
    means a child evaluated in accordance with Secs. 300.530-300.536 as 
    having mental retardation, a hearing impairment including deafness, a 
    speech or language impairment, a visual impairment including blindness, 
    serious emotional disturbance (hereafter referred to as emotional 
    disturbance), an orthopedic impairment, autism, traumatic brain injury, 
    an other health impairment, a specific learning disability, deaf-
    blindness, or a multiple disability, and who because of that impairment 
    needs special education and related services.
        (2) The term child with a disability for children aged 3 through 9 
    may include a child--
        (i) Who is experiencing developmental delays, as defined by the 
    State and as measured by appropriate diagnostic instruments and 
    procedures, in one or more of the following areas: physical 
    development, cognitive development, communication development, social 
    or emotional development, or adaptive development;
        (ii) Who, for that reason, needs special education and related 
    services; and
        (iii) If the State adopts the term for children of this age range 
    (or a subset of that range) and the LEA chooses to use the term.
        (b) The terms used in this definition are defined as follows:
        (1) Autism means a developmental disability significantly affecting 
    verbal and nonverbal communication and social interaction, generally 
    evident before age 3, that adversely affects a child's educational 
    performance. Other characteristics often associated with autism are 
    engagement in repetitive activities and stereotyped movements, 
    resistance to environmental change or change in daily routines, and 
    unusual responses to sensory experiences. The term does not apply if a 
    child's educational performance is adversely affected primarily because 
    the child has an emotional disturbance, as defined in paragraph (b)(4) 
    of this section.
        (2) Deaf-blindness means concomitant hearing and visual 
    impairments, the combination of which causes such severe communication 
    and other developmental and educational problems that they cannot be 
    accommodated in special education programs solely for children with 
    deafness or children with blindness.
        (3) Deafness means a hearing impairment that is so severe that the 
    child is impaired in processing linguistic information through hearing, 
    with or without amplification, that adversely affects a child's 
    educational performance.
        (4) Emotional disturbance is defined as follows:
        (i) The term means a condition exhibiting one or more of the 
    following characteristics over a long period of time and to a marked 
    degree that adversely affects a child's educational performance:
        (A) An inability to learn that cannot be explained by intellectual, 
    sensory, or health factors.
        (B) An inability to build or maintain satisfactory interpersonal 
    relationships with peers and teachers.
        (C) Inappropriate types of behavior or feelings under normal 
    circumstances.
        (D) A general pervasive mood of unhappiness or depression.
        (E) A tendency to develop physical symptoms or fears associated 
    with personal or school problems.
        (ii) The term includes schizophrenia. The term does not apply to 
    children who are socially maladjusted, unless it is determined that 
    they have an emotional disturbance.
        (5) Hearing impairment means an impairment in hearing, whether 
    permanent or fluctuating, that adversely affects a child's educational 
    performance but that is not included under the definition of deafness 
    in this section.
        (6) Mental retardation means significantly subaverage general 
    intellectual functioning, existing concurrently with deficits in 
    adaptive behavior and manifested during the developmental period, that 
    adversely affects a child's educational performance.
        (7) Multiple disability means concomitant impairments (such as 
    mental retardation-blindness, mental retardation-orthopedic impairment, 
    etc.), the combination of which causes such severe educational problems 
    that the problems cannot be accommodated in special education programs 
    solely for one of the impairments. The term does not include deaf-
    blindness.
        (8) Orthopedic impairment means a severe orthopedic impairment that 
    adversely affects a child's educational performance. The term includes 
    impairments caused by congenital anomaly (e.g., clubfoot, absence of 
    some member, etc.), impairments caused by disease (e.g., poliomyelitis, 
    bone tuberculosis, etc.), and impairments from other causes (e.g., 
    cerebral palsy, amputations, and fractures or burns that cause 
    contractures).
        (9) Other health impairment means having limited strength, vitality 
    or alertness, due to chronic or acute health problems such as a heart 
    condition, tuberculosis, rheumatic fever, nephritis, asthma, sickle 
    cell anemia, hemophilia,
    
    [[Page 55070]]
    
    epilepsy, lead poisoning, leukemia, or diabetes, that adversely affects 
    a child's educational performance.
        (10) Specific learning disability is defined as follows:
        (i) General. The term means a disorder in one or more of the basic 
    psychological processes involved in understanding or in using language, 
    spoken or written, that may manifest itself in an imperfect ability to 
    listen, think, speak, read, write, spell, or to do mathematical 
    calculations, including such conditions as perceptual disabilities, 
    brain injury, minimal brain dysfunction, dyslexia, and developmental 
    aphasia.
        (ii) Disorders not included. The term does not include learning 
    problems that are primarily the result of visual, hearing, or motor 
    disabilities, of mental retardation, of emotional disturbance, or of 
    environmental, cultural, or economic disadvantage.
        (11) Speech or language impairment means a communication disorder, 
    such as stuttering, impaired articulation, a language impairment, or a 
    voice impairment, that adversely affects a child's educational 
    performance.
        (12) Traumatic brain injury means an acquired injury to the brain 
    caused by an external physical force, resulting in total or partial 
    functional disability or psychosocial impairment, or both, that 
    adversely affects a child's educational performance. The term applies 
    to open or closed head injuries resulting in impairments in one or more 
    areas, such as cognition; language; memory; attention; reasoning; 
    abstract thinking; judgment; problem-solving; sensory, perceptual, and 
    motor abilities; psychosocial behavior; physical functions; information 
    processing; and speech. The term does not apply to brain injuries that 
    are congenital or degenerative, or to brain injuries induced by birth 
    trauma.
        (13) Visual impairment including blindness means an impairment in 
    vision that, even with correction, adversely affects a child's 
    educational performance. The term includes both partial sight and 
    blindness.
    
    (Authority: 20 U.S.C. 1401(3) (A) and (B); 1401(26))
    
        Note 1: If a child manifests characteristics of the disability 
    category ``autism'' after age 3, that child still could be diagnosed 
    as having ``autism'' if the criteria in paragraph (b)(1) of this 
    section are satisfied.
    
        Note 2: As used in paragraph (a)(2) of this section, the phrase 
    ``at the discretion of the State and LEA'' means that if the State 
    adopts the term ``developmental delay'' for children aged 3 through 
    9, or for a subset of that age range (e.g., children aged 3 through 
    5, etc.), LEAs that choose to use ``developmental delay,'' rather 
    than identify these children as being in a particular disability 
    category, must conform to the State's definition of the term. 
    However, a State may not require an LEA to use ``developmental 
    delay'' for this age range. LEAs in a State that does not adopt the 
    term ``developmental delay'' for children in this age range, or for 
    a sub-set of this age range, cannot independently use 
    ``developmental delay'' as a basis for establishing a child's 
    eligibility.
    
        Note 3: With respect to paragraph (a)(2) of this section 
    (relating to ``developmental delay''), the House Committee Report on 
    Pub. L. 105-17 includes the following statement:
        The Committee believes that, in the early years of a child's 
    development, it is often difficult to determine the precise nature 
    of the disability. Use of ``developmental delay'' as part of a 
    unified approach will allow the special education and related 
    services to be directly related to the child's needs and prevent 
    locking the child into an eligibility category which may be 
    inappropriate or incorrect, and could actually reduce later 
    referrals of children with disabilities to special education. (H. 
    Rep. No. 105-95, p. 86 (1997))
    
        Note 4: With respect to paragraph (b)(4) of this section 
    (relating to using the term ``emotional disturbance'' instead of 
    ``serious emotional disturbance''), the House Committee Report on 
    Pub. L. 105-17 includes the following statement:
        The committee wants to make clear that changing the terminology 
    from ``serious emotional disturbance'' to ``serious emotional 
    disturbance (hereinafter referred to as `emotional disturbance')'' 
    in the definition of a ``child with a disability'' is intended to 
    have no substantive or legal significance. It is intended strictly 
    to eliminate the pejorative connotation of the term ``serious.'' It 
    should in no circumstances be construed to change the existing 
    meaning of the term under 34 CFR 300.7(b)(9) as promulgated 
    September 29, 1992 (H. Rep. No. 105-95, p. 86 (1997))
    
        Note 5: A child with attention deficit disorder (ADD) or 
    attention deficit hyperactivity disorder (ADHD) may be eligible 
    under Part B of the Act if the child's condition meets one of the 
    disability categories described in Sec. 300.7, and because of that 
    disability the child needs special education and related services. 
    Some children with ADD or ADHD who are eligible under Part B of the 
    Act meet the criteria for ``other health impairments'' (see 
    paragraph (b)(9) of this section). Those children would be 
    classified as eligible for services under the ``other health 
    impairments'' category if (1) the ADD or ADHD is determined to be a 
    chronic health problem that results in limited alertness, that 
    adversely affects educational performance, and (2) special education 
    and related services are needed because of the ADD or ADHD. The term 
    ``limited alertness'' includes a child's heightened alertness to 
    environmental stimuli that results in limited alertness with respect 
    to the educational environment.
    
        Other children with ADD or ADHD may be eligible under Part B of 
    the Act because they satisfy the criteria applicable to other 
    disability categories in Sec. 300.7(b). For example, children with 
    ADD or ADHD would be eligible for services under the ``specific 
    learning disability category'' if they meet the criteria in 
    paragraph (b)(10) of this section, or under the ``emotional 
    disturbance'' category if they meet the criteria in paragraph 
    (b)(4). Even if a child with ADD or ADHD is found to be not eligible 
    for services under Part B of the Act, the requirements of Section 
    504 of the Rehabilitation Act of 1973 and its implementing 
    regulations at 34 CFR Part 104 may still be applicable.
    
    
    Sec. 300.8  Day.
    
        As used in this part, the term day means calendar day unless 
    otherwise indicated as school day or business day.
    
    (Authority: 20 U.S.C. 1221e-3)
    
    
    Sec. 300.9  Educational service agency.
    
        As used in this part, the term educational service agency--
        (a) Means a regional public multiservice agency--
        (1) Authorized by State law to develop, manage, and provide 
    services or programs to LEAs; and
        (2) Recognized as an administrative agency for purposes of the 
    provision of special education and related services provided within 
    public elementary and secondary schools of the State; and
        (b) Includes any other public institution or agency having 
    administrative control and direction over a public elementary or 
    secondary school.
    
    (Authority: 20 U.S.C. 1401(4))
    
    
    Sec. 300.10  Equipment.
    
        As used in this part, the term equipment means--
        (a) Machinery, utilities, and built-in equipment and any necessary 
    enclosures or structures to house the machinery, utilities, or 
    equipment; and
        (b) All other items necessary for the functioning of a particular 
    facility as a facility for the provision of educational services, 
    including items such as instructional equipment and necessary 
    furniture; printed, published and audio-visual instructional materials; 
    telecommunications, sensory, and other technological aids and devices; 
    and books, periodicals, documents, and other related materials.
    
    (Authority: 20 U.S.C. 1401(6))
    
    
    Sec. 300.11  Free appropriate public education.
    
        As used in this part, the term free appropriate public education 
    means special education and related services that--
    
    [[Page 55071]]
    
        (a) Are provided at public expense, under public supervision and 
    direction, and without charge;
        (b) Meet the standards of the SEA, including the requirements of 
    this part;
        (c) Include preschool, elementary school, or secondary school 
    education in the State; and
        (d) Are provided in conformity with an IEP that meets the 
    requirements of Secs. 300.340-300.351.
    
    (Authority: 20 U.S.C. 1401(8))
    
    
    Sec. 300.12  General curriculum.
    
        As used in this part, the term general curriculum means the 
    curriculum adopted by an LEA, schools within the LEA, or where 
    applicable, the SEA for all children from preschool through secondary 
    school.
    
    (Authority: 20 U.S.C. 1401)
    
        Note: The term ``general curriculum'', as defined in this 
    section, relates to the content of the curriculum and not to the 
    setting in which it is used. Thus, to the extent applicable to an 
    individual child with a disability and consistent with the LRE 
    provisions under Secs. 300.500--300.553, the general curriculum 
    could be used in any educational environment along a continuum of 
    alternative placements described under Sec. 300.551.
    
    
    Sec. 300.13  Include.
    
        As used in this part, the term include means that the items named 
    are not all of the possible items that are covered, whether like or 
    unlike the ones named.
    
    (Authority: 20 U.S.C. 1221e-3)
    
    
    Sec. 300.14  Individualized education program.
    
        As used in this part, the term individualized education program or 
    IEP has the meaning given the term in Sec. 300.340.
    
    (Authority: 20 U.S.C. 1401(11))
    
    
    Sec. 300.15  Individualized education program team.
    
        As used in this part, the term individualized education program 
    team or IEP team means a group of individuals described in Sec. 300.344 
    that is responsible for developing, reviewing, or revising an IEP for a 
    child with a disability.
    
    (Authority: 20 U.S.C. 1221e-3)
    
        Note: The IEP team may also serve as the placement team.
    
    
    Sec. 300.16  Individualized family service plan.
    
        As used in this part, the term individualized family service plan 
    or IFSP has the meaning given the term in 34 CFR 303.340(b).
    
    (Authority: 20 U.S.C. 1401(12))
    
    
    Sec. 300.17  Local educational agency.
    
        (a) As used in this part, the term local educational agency means a 
    public board of education or other public authority legally constituted 
    within a State for either administrative control or direction of, or to 
    perform a service function for, public elementary or secondary schools 
    in a city, county, township school district, or other political 
    subdivision of a State, or for a combination of school districts or 
    counties as are recognized in a State as an administrative agency for 
    its public elementary or secondary schools.
        (b) The term includes--
        (1) An educational service agency, as defined in Sec. 300.9; and
        (2) Any other public institution or agency having administrative 
    control and direction of a public elementary or secondary school.
        (c) The term includes an elementary or secondary school funded by 
    the Bureau of Indian Affairs, but only to the extent that the inclusion 
    makes the school eligible for programs for which specific eligibility 
    is not provided to the school in another provision of law and the 
    school does not have a student population that is smaller than the 
    student population of the LEA receiving assistance under this Act with 
    the smallest student population, except that the school may not be 
    subject to the jurisdiction of any SEA other than the Bureau of Indian 
    Affairs.
    
    (Authority: 20 U.S.C. 1401(15))
    
        Note: A public charter school that meets the definition of 
    ``LEA'' is eligible to receive Part B funds as an LEA. If a public 
    charter school receives Part B funds it must comply with the 
    requirements of this part that apply to LEAs.
    
    
    Sec. 300.18  Native language.
    
        As used in this part, the term native language, if used with 
    reference to an individual of limited English proficiency, means the 
    language normally used by that individual, or, in the case of a child, 
    the language normally used by the parents of the child.
    
    (Authority: 20 U.S.C. 1401(16))
    
        Note: The term ``native language'' is used in the prior notice, 
    procedural safeguards notice, and evaluation sections: 
    Sec. 300.503(c), Sec. 300.504(c) and Sec. 300.532(a)(2). In using 
    the term, the Act does not prevent the following means of 
    communication:
    
        (1) In all direct contact with a child (including evaluation of 
    the child), communication would be in the language normally used by 
    the child and not that of the parents, if there is a difference 
    between the two.
        (2) For individuals with deafness or blindness, or for 
    individuals with no written language, the mode of communication 
    would be that normally used by the individual (such as sign 
    language, braille, or oral communication).
    
    
    Sec. 300.19  Parent.
    
        (a) As used in this part, the term parent means a parent, a 
    guardian, a person acting as a parent of a child, or a surrogate parent 
    who has been appointed in accordance with Sec. 300.515. The term does 
    not include the State if the child is a ward of the State.
        (b) State law may provide that a foster parent qualifies as a 
    parent under Part B of the Act if--
        (1) The natural parents' authority to make educational decisions on 
    the child's behalf has been extinguished under State law;
        (2) The foster parent has an ongoing, long-term parental 
    relationship with the child;
        (3) The foster parent is willing to participate in making 
    educational decisions in the child's behalf; and
        (4) The foster parent has no interest that would conflict with the 
    interests of the child.
    
    (Authority: 20 U.S.C. 1401(19))
    
        Note: The term ``parent'' is defined to include persons acting 
    in the place of a parent, such as a grandparent or stepparent with 
    whom a child lives, as well as persons who are legally responsible 
    for a child's welfare, and at the discretion of the State, a foster 
    parent who meets the requirements in paragraph (b) of this section.
    
    
    Sec. 300.20  Public agency.
    
        As used in this part, the term public agency includes the SEA, 
    LEAs, ESAs, and any other political subdivisions of the State that are 
    responsible for providing education to children with disabilities.
    
    (Authority: 20 U.S.C. 1412 (a)(1)(A), (a)(11))
    
    
    Sec. 300.21  Qualified.
    
        As used in this part, the term qualified means that a person has 
    met SEA-approved or -recognized certification, licensing, registration, 
    or other comparable requirements that apply to the area in which he or 
    she is providing special education or related services.
    
    (Authority: 20 U.S.C. 1221e-3)
    
    
    Sec. 300.22  Related services.
    
        (a) As used in this part, the term related services means 
    transportation and such developmental, corrective, and other supportive 
    services as are required to assist a child with a disability to benefit 
    from special education, and includes speech-language pathology and 
    audiology services, psychological services, physical and occupational 
    therapy, recreation, including therapeutic recreation, early
    
    [[Page 55072]]
    
    identification and assessment of disabilities in children, counseling 
    services, including rehabilitation counseling, orientation and mobility 
    services, and medical services for diagnostic or evaluation purposes. 
    The term also includes school health services, social work services in 
    schools, and parent counseling and training.
        (b) The terms used in this definition are defined as follows:
        (1) Audiology includes--
        (i) Identification of children with hearing loss;
        (ii) Determination of the range, nature, and degree of hearing 
    loss, including referral for medical or other professional attention 
    for the habilitation of hearing;
        (iii) Provision of habilitative activities, such as language 
    habilitation, auditory training, speech reading (lip-reading), hearing 
    evaluation, and speech conservation;
        (iv) Creation and administration of programs for prevention of 
    hearing loss;
        (v) Counseling and guidance of pupils, parents, and teachers 
    regarding hearing loss; and
        (vi) Determination of the child's need for group and individual 
    amplification, selecting and fitting an appropriate aid, and evaluating 
    the effectiveness of amplification.
        (2) Counseling services means services provided by qualified social 
    workers, psychologists, guidance counselors, or other qualified 
    personnel.
        (3) Early identification and assessment of disabilities in children 
    means the implementation of a formal plan for identifying a disability 
    as early as possible in a child's life.
        (4) Medical services means services provided by a licensed 
    physician to determine a child's medically related disability that 
    results in the child's need for special education and related services.
        (5) Occupational therapy includes --
        (i) Improving, developing or restoring functions impaired or lost 
    through illness, injury, or deprivation;
        (ii) Improving ability to perform tasks for independent functioning 
    if functions are impaired or lost; and
        (iii) Preventing, through early intervention, initial or further 
    impairment or loss of function.
        (6) Orientation and mobility services means services provided to 
    blind or visually impaired students by qualified personnel to enable 
    those students to attain systematic orientation to and safe movement 
    within their environments in school, home, and community, including --
        (i) Teaching students spatial and environmental concepts and use of 
    information received by the senses (such as sound, temperature and 
    vibrations) to establish, maintain, or regain orientation and line of 
    travel (for example, using sound at a traffic light to cross the 
    street);
        (ii) Teaching students to use the long cane, as appropriate, to 
    supplement visual travel skills or as a tool for safely negotiating the 
    environment for students with no available travel vision;
        (iii) Teaching students to understand and use remaining vision and 
    distance low vision aids, as appropriate; and
        (iv) Other concepts, techniques, and tools, as determined 
    appropriate.
        (7) Parent counseling and training means assisting parents in 
    understanding the special needs of their child and providing parents 
    with information about child development.
        (8) Physical therapy means services provided by a qualified 
    physical therapist.
        (9) Psychological services includes --
        (i) Administering psychological and educational tests, and other 
    assessment procedures;
        (ii) Interpreting assessment results;
        (iii) Obtaining, integrating, and interpreting information about 
    child behavior and conditions relating to learning;
        (iv) Consulting with other staff members in planning school 
    programs to meet the special needs of children as indicated by 
    psychological tests, interviews, and behavioral evaluations;
        (v) Planning and managing a program of psychological services, 
    including psychological counseling for children and parents; and
        (vi) Assisting in developing positive behavioral intervention 
    strategies.
        (10) Recreation includes --
        (i) Assessment of leisure function;
        (ii) Therapeutic recreation services;
        (iii) Recreation programs in schools and community agencies; and
        (iv) Leisure education.
        (11) Rehabilitation counseling services means services provided by 
    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 a 
    student with a disability. The term also includes vocational 
    rehabilitation services provided to a student with disabilities by 
    vocational rehabilitation programs funded under the Rehabilitation Act 
    of 1973, as amended.
        (12) School health services means services provided by a qualified 
    school nurse or other qualified person.
        (13) Social work services in schools includes --
        (i) Preparing a social or developmental history on a child with a 
    disability;
        (ii) Group and individual counseling with the child and family;
        (iii) Working with those problems in a child's living situation 
    (home, school, and community) that affect the child's adjustment in 
    school;
        (iv) Mobilizing school and community resources to enable the child 
    to learn as effectively as possible in his or her educational program; 
    and
        (v) Assisting in developing positive behavioral intervention 
    strategies.
        (14) Speech-language pathology services includes--
        (i) Identification of children with speech or language impairments;
        (ii) Diagnosis and appraisal of specific speech or language 
    impairments;
        (iii) Referral for medical or other professional attention 
    necessary for the habilitation of speech or language impairments;
        (iv) Provision of speech and language services for the habilitation 
    or prevention of communicative impairments; and
        (v) Counseling and guidance of parents, children, and teachers 
    regarding speech and language impairments.
        (15) Transportation includes--
        (i) Travel to and from school and between schools;
        (ii) Travel in and around school buildings; and
        (iii) Specialized equipment (such as special or adapted buses, 
    lifts, and ramps), if required to provide special transportation for a 
    child with a disability.
    
    (Authority: 20 U.S.C. 1401(22))
    
        Note 1: All related services may not be required for each 
    individual child. The list of related services is not exhaustive and 
    may include other developmental, corrective, or supportive services 
    (such as artistic and cultural programs, art, music, and dance 
    therapy, travel training, nutrition services, and independent living 
    services), if they are required to assist a child with a disability 
    to benefit from special education in order for the child to receive 
    FAPE.
        There are certain kinds of services that might be provided by 
    persons from varying professional backgrounds and with a variety of 
    operational titles, depending upon requirements in individual 
    States. For example, counseling services might be provided by social 
    workers, psychologists, or guidance counselors, and psychological 
    testing might be done by qualified psychological examiners, 
    psychometrists, or psychologists, depending upon State standards.
        Each related service defined under Part B of the Act may include 
    appropriate administrative and supervisory activities that are 
    necessary for program planning, management, and evaluation.
    
    
    [[Page 55073]]
    
    
        Note 2: While ``orientation and mobility services'' was added to 
    the list of examples of related services in recognition of its 
    critical importance to children who are blind or have visual 
    impairments, children with other disabilities may also need to be 
    taught the skills they need to navigate their environments (e.g. 
    ``travel training''). The House Committee Report on Public Law 105-
    17 states:
        * * *it is important to keep in mind that children with other 
    disabilities may also need instruction in traveling around their 
    school, or to and from school. A high school aged child with a 
    mental disability, for example, might need to be taught how to get 
    from class to class so that he can participate in his inclusive 
    program. The addition of orientation and mobility services to the 
    list of identified related services is not intended to result in the 
    denial of appropriate services for children with disabilities who do 
    not have visual impairments or blindness. (H. Rep. No. 105-95, p.86 
    (1997))
        In addition, travel training is important to enable students to 
    attain systematic orientation to and safe movement within their 
    environment in school, home, at work, and in the community.
    
        Note 3: With respect to paragraph (b) of this section, nothing 
    in this part prohibits the use of paraprofessionals to assist in the 
    provision of services described under this section, if doing so is 
    consistent with Sec. 300.136(f).
    
        Note 4: It should be assumed that most children with 
    disabilities receive the same transportation services as nondisabled 
    children. For some children with disabilities, integrated 
    transportation may be achieved by providing needed accommodations 
    such as lifts and other equipment adaptations on regular school 
    transportation vehicles.
    
    
    Sec. 300.23  Secondary school.
    
        As used in this part, the term secondary school means a nonprofit 
    institutional day or residential school that provides secondary 
    education, as determined under State law, except that it does not 
    include any education beyond grade 12.
    
    (Authority: 20 U.S.C. 1401(23))
    
    
    Sec. 300.24  Special education.
    
        (a) (1) As used in this part, the term special education means 
    specially designed instruction, at no cost to the parents, to meet the 
    unique needs of a child with a disability, including--
        (i) Instruction conducted in the classroom, in the home, in 
    hospitals and institutions, and in other settings; and
        (ii) Instruction in physical education.
        (2) The term includes speech-language pathology services, 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, and is considered special education rather 
    than a related service under State standards.
        (3) The 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.
        (b) The terms in this definition are defined as follows:
        (1) At no cost means that all specially-designed instruction is 
    provided without charge, but does not preclude incidental fees that are 
    normally charged to nondisabled students or their parents as a part of 
    the regular education program.
        (2) Physical education is defined as follows:
        (i) The term means the development of--
        (A) Physical and motor fitness;
        (B) Fundamental motor skills and patterns; and
        (C) Skills in aquatics, dance, and individual and group games and 
    sports (including intramural and lifetime sports).
        (ii) The term includes special physical education, adaptive 
    physical education, movement education, and motor development.
        (3) Specially-designed instruction means adapting content, 
    methodology or delivery of instruction--
        (i) To address the unique needs of an eligible child under this 
    part that result from the child's disability; and
        (ii) To ensure access of the child to the general curriculum, so 
    that he or she can meet the educational standards within the 
    jurisdiction of the public agency that apply to all children.
        (4) Vocational education means organized educational programs that 
    are directly related to the preparation of individuals for paid or 
    unpaid employment, or for additional preparation for a career requiring 
    other than a baccalaureate or advanced degree.
    
    (Authority: 20 U.S.C. 1401(25))
    
        Note: The definition of special education is a particularly 
    important one under these regulations, since a child does not have a 
    disability under Part B of the Act unless he or she needs special 
    education. (See the definition of child with a disability in 
    Sec. 300.7). The definition of related services (Sec. 300.22) also 
    depends on this definition, since to be a related service, a service 
    must be necessary for a child to benefit from special education. 
    Therefore, if a child does not need special education, there can be 
    no related services, and the child is not a child with a disability 
    and is therefore not covered under the Act. A related services 
    provider may be a provider of specially-designed instruction if 
    under State law the person is qualified to provide such instruction.
    
    
    Sec. 300.25  State.
    
        As used in this part, the term State means each of the 50 States, 
    the District of Columbia, the Commonwealth of Puerto Rico, and each of 
    the outlying areas.
    
    (Authority: 20 U.S.C. 1401(27))
    
    
    Sec. 300.26  Supplementary aids and services.
    
        As used in this part, the term supplementary aids and services 
    means, aids, services, and other supports that are provided in regular 
    education classes or other education-related settings to enable 
    children with disabilities to be educated with nondisabled children to 
    the maximum extent appropriate in accordance with Secs. 300.550-
    300.556.
    
    (Authority: 20 U.S.C. 1401(29))
    
    
    Sec. 300.27  Transition services.
    
        As used in this part, transition services means a coordinated set 
    of activities for a student with a disability that--
        (a) Is designed within an outcome-oriented process, that promotes 
    movement from school to post-school activities, including postsecondary 
    education, vocational training, integrated employment (including 
    supported employment), continuing and adult education, adult services, 
    independent living, or community participation;
        (b) Is based on the individual student's needs, taking into account 
    the student's preferences and interests; and
        (c) Includes--
        (1) Instruction;
        (2) Related services;
        (3) Community experiences;
        (4) The development of employment and other post-school adult 
    living objectives; and
        (5) If appropriate, acquisition of daily living skills and 
    functional vocational evaluation.
    
    (Authority: 20 U.S.C. 1401(30))
    
        Note: Transition services for students with disabilities may be 
    special education, if they are provided as specially designed 
    instruction, or related services, if they are required to assist a 
    student with a disability to benefit from special education. The 
    list of activities in paragraph (c) of this section is not intended 
    to be exhaustive.
    
    
    Sec. 300.28  Definitions in EDGAR.
    
        The following terms used in this part are defined in 34 CFR 77.1:
    
    Application
    Award
    Contract
    Department
    EDGAR
    Fiscal year
    Grant
    Project
    Secretary
    Subgrant
    
    
    [[Page 55074]]
    
    
    (Authority: 20 U.S.C. 1221e-3(a)(1))
    
    Subpart B--State and Local Eligibility--General State Eligibility--
    General
    
    
    Sec. 300.110  Condition of assistance.
    
        A State is eligible for assistance under Part B of the Act for a 
    fiscal year if the State demonstrates to the satisfaction of the 
    Secretary that the State has in effect policies and procedures to 
    ensure that it meets the conditions in Secs. 300.121-300.156.
    
    (Authority: 20 U.S.C. 1412(a))
    
    
    Sec. 300.111  Exception for prior State policies and procedures on file 
    with the Secretary.
    
        If a State has on file with the Secretary policies and procedures 
    approved by the Secretary that demonstrate that the State meets any 
    requirement of Sec. 300.110, including any policies and procedures 
    filed under Part B of the Act as in effect before June 4, 1997, the 
    Secretary considers the State to have met the requirement for purposes 
    of receiving a grant under Part B of the Act.
    
    (Authority: 20 U.S.C. 1412(c)(1))
    
    
    Sec. 300.112  Amendments to State policies and procedures.
    
        (a) Modifications made by a State. (1) Subject to paragraph (b) of 
    this section, policies and procedures submitted by a State in 
    accordance with this subpart remain in effect until the State submits 
    to the Secretary the modifications that the State decides are 
    necessary.
        (2) The provisions of this subpart apply to a modification to a 
    State's policies and procedures in the same manner and to the same 
    extent that they apply to the State's original policies and procedures.
        (b) Modifications required by the Secretary. The Secretary may 
    require a State to modify its policies and procedures, but only to the 
    extent necessary to ensure the State's compliance with this part, if--
        (1) After June 4, 1997, the provisions of the Act or the 
    regulations in this part are amended;
        (2) There is a new interpretation of this Act or regulations by a 
    Federal court or a State's highest court; or
        (3) There is an official finding of noncompliance with Federal law 
    or regulations.
    
    (Authority: 20 U.S.C. 1412(c) (2) and (3))
    
    
    Sec. 300.113  Approval by the Secretary.
    
        (a) General. If the Secretary determines that a State is eligible 
    to receive a grant under Part B of the Act, the Secretary notifies the 
    State of that determination.
        (b) Notice and hearing before determining a State is not eligible. 
    The Secretary does not make a final determination that a State is not 
    eligible to receive a grant under Part B of the Act until after 
    providing the State reasonable notice and an opportunity for a hearing 
    in accordance with the procedures in Secs. 300.581-300.587.
    
    (Authority: 20 U.S.C. 1412(d))
    
    
    Secs. 300.114-300.120  [Reserved]
    
    State Eligibility--Specific Conditions
    
    
    Sec. 300.121  Free appropriate public education.
    
        (a) General. Each State must have on file with the Secretary 
    information that shows that, subject to Sec. 300.122, the State has in 
    effect a policy that ensures that all children with disabilities aged 3 
    through 21 residing in the State have the right to FAPE, including 
    children with disabilities who have been suspended or expelled from 
    school.
        (b) Required information. The information described in paragraph 
    (a) of this section must--
        (1) Include a copy of each State statute, court order, State 
    Attorney General opinion, and other State documents that show the 
    source of the State's policy relating to FAPE; and
        (2) Show that the policy--
        (i) Applies to all public agencies in the State; and
        (ii) Applies to all children with disabilities, including children 
    who have been suspended or expelled from school.
        (c) FAPE for children suspended or expelled from school.
        (1) For the purposes of this section, the term ``children with 
    disabilities who have been suspended or expelled from school'' means 
    children with disabilities who have been removed from their current 
    educational placement for more than 10 school days in a given school 
    year.
        (2) The right to FAPE for children with disabilities who have been 
    suspended or expelled from school begins on the eleventh school day in 
    a school year that they are removed from their current educational 
    placement.
        (3) In providing FAPE to children with disabilities who have been 
    suspended or expelled from school, a public agency shall meet the 
    requirements of Sec. 300.522.
    
    (Authority: 20 U.S.C. 1412(a)(1))
    
        Note 1: With respect to paragraph (a) of this section, a public 
    agency's obligation to make FAPE available to each eligible child 
    means that the obligation begins no later than the child's third 
    birthday. Thus, an IEP or an IFSP must be in effect for the child by 
    that date, in accordance with Sec. 300.342. The IEP would specify 
    the special education and related services that are needed in order 
    to ensure that the child receives FAPE, including any extended 
    school year services, if appropriate. If a child who is receiving 
    early intervention services under Part C of the Act will be 
    participating in a preschool program under Part B of the Act, the 
    transition requirements of Sec. 300.132 would apply.
    
        Note 2: School districts are not relieved of their obligation to 
    provide appropriate special education and related services to 
    individual disabled students who need them even though they are 
    advancing from grade to grade. The decision whether a student with a 
    disability who is advancing from grade to grade is eligible for 
    services under this part must be determined on an individual basis 
    by the child's IEP team.
    
    
    Sec. 300.122  Exception to FAPE for certain ages.
    
        (a) General. The obligation to make FAPE available to all children 
    with disabilities does not apply with respect to--
        (1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the 
    extent that its application to those children would be inconsistent 
    with State law or practice, or the order of any court, respecting the 
    provision of public education to children in one or more of those age 
    groups;
        (2) Students aged 18 through 21 to the extent that State law does 
    not require that special education and related services under Part B of 
    the Act be provided to students with disabilities who, in the last 
    educational placement prior to their incarceration in an adult 
    correctional facility--
        (i) Were not actually identified as being a child with a disability 
    under Sec. 300.7; and
        (ii) Did not have an IEP under Part B of the Act.
        (3)(i) Students with disabilities who have graduated from high 
    school with a regular high school diploma.
        (ii) The exception in paragraph (a)(3)(i) of this section does not 
    apply to students who have graduated but have not been awarded a 
    regular high school diploma.
        (b) Documents relating to exceptions. The State must have on file 
    with the Secretary--
        (1)(i) Information that describes in detail the extent that the 
    exception in paragraph (a)(1) of this section applies to the State; and
        (ii) A copy of each State law, court order, and other documents 
    that provide a basis for the exception; and
        (2) With respect to paragraph (a)(2) of this section, a copy of the 
    State law that excludes from service under Part B of the Act certain 
    students who are
    
    [[Page 55075]]
    
    incarcerated in an adult correctional facility.
    
    (Authority: 20 U.S.C. 1412(a)(1)(B))
    
        Note 1: Under paragraph (a)(3) of this section, a student's 
    eligibility for FAPE ceases upon graduation from high school with a 
    regular high school diploma. Under Part B of the Act, graduation is 
    considered to be a change in placement, and would require that prior 
    written notice, in accordance with Sec. 300.503, be given to the 
    parents and the student, if appropriate. The notice would inform the 
    parents and the student of this fact and of their right to challenge 
    the student's pending graduation (through the due process procedures 
    in Sec. 300.507), if they believe that the student has not met the 
    requirements for graduation with a regular high school diploma. 
    Since graduation changes a student's eligibility status, a 
    reevaluation would be required under Sec. 300.534(c).
        In a small number of cases, a school district may be awarding a 
    special certificate to some children with disabilities. If a high 
    school awards a student with a disability certificate of attendance 
    or other certificate of graduation instead of a regular high school 
    diploma, the student would still be entitled to FAPE until the 
    student reaches the age at which eligibility ceases under the age 
    requirements within the State or has earned a regular high school 
    diploma.
    
        Note 2: With respect to paragraph (a)(2) of this section, 
    (relating to certain students with disabilities in adult prisons), 
    the House Committee Report on Pub. L. 105-17 includes the following 
    statement:
    
        The bill provides that a State may also opt not to serve 
    individuals who, in the educational placement prior to their 
    incarceration in adult correctional facilities, were not actually 
    identified as a child with a disability under section 602(3) or did 
    not have an IEP under Part B of the Act. The Committee means to * * 
    * make clear that services need not be provided to all children who 
    were at one time determined to be eligible under Part B of the Act. 
    The Committee does not intend to permit the exclusion from services 
    under part B of children who had been identified as children with 
    disabilities and had received services under an IEP, but who had 
    left school prior to their incarceration. In other words, if a child 
    had an IEP in his or her last educational placement, the child has 
    an IEP for purposes of this provision. The Committee added language 
    to make clear that children with disabilities aged 18 through 21, 
    who did not have an IEP in their last educational setting but who 
    had actually been identified should not be excluded from 
    services.(H. Rep. No. 105-95, p. 91 (1997))
    
    
    Sec. 300.123  Full educational opportunity goal.
    
        The State must have on file with the Secretary detailed policies 
    and procedures through which the State has established a goal of 
    providing full educational opportunity to all children with 
    disabilities aged birth through 21.
    
    (Authority: 20 U.S.C. 1412(a)(2))
    
    
    Sec. 300.124  FEOG--timetable.
    
        The State must have on file with the Secretary a detailed timetable 
    for accomplishing the goal of providing full educational opportunity 
    for all children with disabilities.
    
    (Authority: 20 U.S.C. 1412(a)(2))
    
    
    Sec. 300.125  Child find.
    
        (a) General requirement. The State must have in effect policies and 
    procedures to ensure that--
        (1) All children with disabilities residing in the State, including 
    children with disabilities attending private schools, regardless of the 
    severity of their disability, and who are in need of special education 
    and related services are identified, located, and evaluated; and
        (2) A practical method is developed and implemented to determine 
    which children are currently receiving needed special education and 
    related services.
        (b) Documents relating to child find. The State must have on file 
    with the Secretary the policies and procedures described in paragraph 
    (a) of this section, including--
        (1) The name of the State agency (if other than the SEA) 
    responsible for coordinating the planning and implementation of the 
    policies and procedures under paragraph (a) of this section;
        (2) The name of each agency that participates in the planning and 
    implementation of the child find activities and a description of the 
    nature and extent of its participation;
        (3) A description of how the policies and procedures under 
    paragraph (a) of this section will be monitored to ensure that the SEA 
    obtains--
        (i) The number of children with disabilities within each disability 
    category that have been identified, located, and evaluated; and
        (ii) Information adequate to evaluate the effectiveness of those 
    policies and procedures; and
        (4) A description of the method the State uses to determine which 
    children are currently receiving special education and related 
    services.
        (c) Construction. Nothing in the Act requires that children be 
    classified by their disability so long as each child who has a 
    disability listed in Sec. 300.7 and who, by reason of that disability, 
    needs special education and related services is regarded as a child 
    with a disability under Part B of the Act.
    
    (Authority: 20 U.S.C. 1412 (a)(3) (A) and (B))
    
        Note 1: Collection and use of data are subject to the 
    confidentiality requirements of Secs. 300.560-300.577.
        Note 2: The services and placement needed by each child with a 
    disability to receive FAPE must be based upon the child's unique 
    needs and may not be determined or limited based upon a category of 
    disability.
    
        Note 3: Under both Parts B and C of the Act, States are 
    responsible for identifying, locating, and evaluating infants and 
    toddlers from birth through 2 years of age who have disabilities or 
    who are suspected of having disabilities. In States where the SEA 
    and the State's lead agency for the Part C program are different and 
    the Part C lead agency will be participating in the child find 
    activities described in paragraph (a) of this section, the nature 
    and extent of the Part C lead agency's participation must, under 
    paragraph (b)(2) of this section, be provided. With the SEA's 
    agreement, the Part C lead agency's participation may include the 
    actual implementation of child find activities for infants and 
    toddlers. The use of an interagency agreement or other mechanism for 
    providing for the Part C lead agency's participation would not alter 
    or diminish the responsibility of the SEA to ensure compliance with 
    all child find requirements, including the requirement in paragraph 
    (a)(1) of this section that all children with disabilities who are 
    in need of special education and related services are evaluated.
    
        Note 4: Each State has an obligation to ensure that State and 
    local child find responsibilities under Part B of the Act extend to 
    highly mobile children (such as migrant and homeless children).
    
    
    Sec. 300.126  Procedures for evaluation and determination of 
    eligibility.
    
        The State must have on file with the Secretary policies and 
    procedures that ensure that the requirements of Secs. 300.530-300.536 
    are met.
    
    (Authority: 20 U.S.C. 1412(a) (6)(B), (7))
    
    
    Sec. 300.127  Confidentiality of personally identifiable information.
    
        (a) The State must have on file in detail the policies and 
    procedures that the State has undertaken in order to ensure the 
    protection of the confidentiality of any personally identifiable 
    information, collected, used, or maintained under Part B of the Act.
        (b) The Secretary uses the criteria in Secs. 300.560-300.577 to 
    evaluate the policies and procedures of the State under paragraph (a) 
    of this section.
    
    (Authority: 20 U.S.C. 1412(a)(8))
    
        Note: The regulations implementing the Family Educational Rights 
    and Privacy Act are in 34 CFR Part 99. Those regulations are 
    incorporated in Secs. 300.560-300.577.
    
    
    Sec. 300.128  Individualized education programs.
    
        (a) General. The State must have on file with the Secretary 
    information that shows that an IEP, or IFSP that meets the requirements 
    of section 636(d) of the Act, is developed, reviewed, and revised for 
    each child with a disability in accordance with Secs. 300.340-300.351.
    
    [[Page 55076]]
    
        (b) Required information. The information described in paragraph 
    (a) of this section must include--
        (1) A copy of each State statute, policy, and standard that 
    regulates the manner in which IEPs are developed, implemented, 
    reviewed, and revised; and
        (2) The procedures that the SEA follows in monitoring and 
    evaluating those programs.
    
    (Authority: 20 U.S.C. 1412(a)(4))
    
    
    Sec. 300.129  Procedural safeguards.
    
        (a) The State must have on file with the Secretary procedural 
    safeguards that ensure that the requirements of Secs. 300.500-300.529 
    are met.
        (b) Children with disabilities and their parents must be afforded 
    the procedural safeguards identified in paragraph (a) of this section.
    
    (Authority: 20 U.S.C. 1412(a)(6)(A))
    
    
    Sec. 300.130  Least restrictive environment.
    
        (a) General. The State must have on file with the Secretary 
    procedures that ensure that the requirements of Secs. 300.550-300.556 
    are met.
        (b) Additional requirement.
        (1) If the State uses a funding mechanism by which the State 
    distributes State funds on the basis of the type of setting in which a 
    child is served, the funding mechanism may not result in placements 
    that violate the requirements of paragraph (a) of this section.
        (2) If the State does not have policies and procedures to ensure 
    compliance with paragraph (b)(1) of this section, the State must 
    provide the Secretary an assurance that the State will revise the 
    funding mechanism as soon as feasible to ensure that the mechanism does 
    not result in placements that violate that paragraph.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
        Note: With respect to the LRE requirement of this section, and 
    the continuum of alternative educational placements described in 
    Sec. 300.551, the House Committee Report on Pub. L. 105-17 states:
        The committee supports the longstanding policy of a continuum of 
    alternative placements designed to meet the unique needs of each 
    child with a disability. Placement options available include 
    instruction in regular classes, special classes, special schools, 
    home instruction, and instruction in hospitals and institutions. For 
    disabled children placed in regular classes, supplementary aids and 
    services and resource room services or itinerant instruction must 
    also be offered as needed. (H. Rep. 105-95, p. 91 (1997))
    
    
    Sec. 300.131  [Reserved]
    
    
    Sec. 300.132  Transition of children from Part C to preschool programs.
    
        The State must have on file with the Secretary policies and 
    procedures to ensure that--
        (a) Children participating in early-intervention programs assisted 
    under Part C of the Act, and who will participate in preschool programs 
    assisted under Part B of the Act, experience a smooth and effective 
    transition to those preschool programs in a manner consistent with 
    section 637(a)(8) of the Act;
        (b) By the third birthday of a child described in paragraph (a) of 
    this section, an IEP or, if consistent with Sec. 300.342(c) and section 
    636(d) of the Act, an IFSP, has been developed and must be implemented 
    for the child; and
        (c) Each LEA will participate in transition planning conferences 
    arranged by the designated lead agency under section 637(a)(8) of the 
    Act.
    
    (Authority: 20 U.S.C. 1412(a)(9))
    
    
    Sec. 300.133  Private schools.
    
        The State must have on file with the Secretary policies and 
    procedures that ensure that the requirements of Secs. 300.400-300.403 
    and Secs. 300.450-300.462 are met.
    
    (Authority: 20 U.S.C. 1413(a)(4))
    
    
    Sec. 300.134  [Reserved]
    
    
    Sec. 300.135  Comprehensive system of personnel development.
    
        (a) General. The State must have in effect, consistent with the 
    purposes of this part and with section 635(a)(8) of the Act, a 
    comprehensive system of personnel development that --
        (1) Is designed to ensure an adequate supply of qualified special 
    education, regular education, and related services personnel; and
        (2) Meets the requirements for a State improvement plan relating to 
    personnel development in section 653 (b)(2)(B) and (c)(3)(D) of the 
    Act.
        (b) Information. The State must have on file with the Secretary 
    information that shows that the requirements of paragraph (a) of this 
    section are met.
    
    (Authority: 20 U.S.C. 1412(a)(14))
    
        Note: With respect to meeting the CSPD requirement of this 
    section, the House Committee Report on Pub. L. 105-17 states:
    
        Section 612, as [in] current law, requires that a State have in 
    effect a Comprehensive System of Personnel Development (CSPD) that 
    is designed to ensure an adequate supply of qualified personnel, 
    including the establishment of procedures for acquiring and 
    disseminating significant knowledge derived from educational 
    research and for adopting, where appropriate, promising practices, 
    materials, and technology. (H. Rep. 105-95, p. 93 (1997))
        States will be able to use the information provided to meet the 
    requirement in Sec. 300.135(a)(2) as a part of their State 
    Improvement Plan under section 653 of the Act, if they choose to do 
    so.
    
    
    Sec. 300.136  Personnel standards.
    
        (a) As used in this part --
        (1) Appropriate professional requirements in the State means entry 
    level requirements that--
        (i) Are based on the highest requirements in the State applicable 
    to the profession or discipline in which a person is providing special 
    education or related services; and
        (ii) Establish suitable qualifications for personnel providing 
    special education and related services under Part B of the Act to 
    children and youth with disabilities who are served by State, local, 
    and private agencies (see Sec. 300.2);
        (2) Highest requirements in the State applicable to a specific 
    profession or discipline means the highest entry-level academic degree 
    needed for any State-approved or -recognized certification, licensing, 
    registration, or other comparable requirements that apply to that 
    profession or discipline;
        (3) Profession or discipline means a specific occupational category 
    that --
        (i) Provides special education and related services to children 
    with disabilities under Part B of the Act;
        (ii) Has been established or designated by the State; and
        (iii) Has a required scope of responsibility and degree of 
    supervision; and
        (4) State-approved or -recognized certification, licensing, 
    registration, or other comparable requirements means the requirements 
    that a State legislature either has enacted or has authorized a State 
    agency to promulgate through rules to establish the entry-level 
    standards for employment in a specific profession or discipline in that 
    State.
        (b) (1) The State must have on file with the Secretary policies and 
    procedures relating to the establishment and maintenance of standards 
    to ensure that personnel necessary to carry out the purposes of this 
    part are appropriately and adequately prepared and trained.
        (2) The policies and procedures required in paragraph (b)(1) of 
    this section must provide for the establishment and maintenance of 
    standards that are consistent with any State-approved or -recognized 
    certification, licensing, registration, or other comparable 
    requirements that apply to the profession or discipline in which a 
    person is providing special education or related services.
    
    [[Page 55077]]
    
        (c) To the extent that a State's standards for a profession or 
    discipline, including standards for temporary or emergency 
    certification, are not based on the highest requirements in the State 
    applicable to a specific profession or discipline, the State must 
    provide the steps the State is taking and the procedures for notifying 
    public agencies and personnel of those steps and the timelines it has 
    established for the retraining or hiring of personnel to meet 
    appropriate professional requirements in the State.
        (d) (1) In meeting the requirements in paragraphs (b) and (c) of 
    this section, a determination must be made about the status of 
    personnel standards in the State. That determination must be based on 
    current information that accurately describes, for each profession or 
    discipline in which personnel are providing special education or 
    related services, whether the applicable standards are consistent with 
    the highest requirements in the State for that profession or 
    discipline.
        (2) The information required in paragraph (d)(1) of this section 
    must be on file in the SEA and available to the public.
        (e) In identifying the highest requirements in the State for 
    purposes of this section, the requirements of all State statutes and 
    the rules of all State agencies applicable to serving children and 
    youth with disabilities must be considered.
        (f) A State may allow paraprofessionals and assistants who are 
    appropriately trained and supervised, in accordance with State law, 
    regulations, or written policy, in meeting the requirements of this 
    part to be used to assist in the provision of special education and 
    related services to children with disabilities under Part B of the Act.
        (g) In implementing this section, a State may adopt a policy that 
    includes a requirement that LEAs in the State make an ongoing good 
    faith effort to recruit and hire appropriately and adequately trained 
    personnel to provide special education and related services to children 
    with disabilities, including, in a geographic area of the State where 
    there is a shortage of personnel that meet these qualifications, the 
    most qualified individuals available who are making satisfactory 
    progress toward completing applicable course work necessary to meet the 
    standards described in paragraph (b)(2) of this section, consistent 
    with State law and the steps described in paragraph (c) of this 
    section, within three years.
    
    (Authority: 20 U.S.C. 1412(a)(15))
    
        Note 1: The regulations require that the State use its own 
    existing highest requirements to determine the standards appropriate 
    to personnel who provide special education and related services 
    under Part B of the Act. The regulations do not require States to 
    set any specified training standard, such as a master's degree, for 
    employment of personnel who provide services under Part B of the 
    Act. In some instances, States are required under paragraph (c) of 
    this section to show that they are taking steps to retrain or to 
    hire personnel to meet the standards adopted by the SEA that are 
    based on requirements for practice in a specific profession or 
    discipline that were established by other State agencies. States in 
    this position need not, however, require personnel providing 
    services under Part B of the Act to apply for and obtain the 
    license, registration, or other comparable credential required by 
    other agencies of individuals in that profession or discipline. The 
    regulations permit each State to determine the specific occupational 
    categories required to provide special education and related 
    services and to revise or expand these categories as needed. The 
    professions or disciplines defined by the State need not be limited 
    to traditional occupational categories.
    
        Note 2: A State may exercise the option under paragraph (g) of 
    this section even though the State has reached its established date, 
    under paragraph (c) of this section, for training or hiring all 
    personnel in a specific profession or discipline to meet appropriate 
    professional requirements in the State. As a practical matter, it is 
    essential that a State have a mechanism for serving students if 
    instructional needs exceed available personnel who meet appropriate 
    professional requirements in the State for a specific profession or 
    discipline. A State that continues to have shortages of personnel 
    meeting appropriate professional requirements in the State must 
    address those shortages in its comprehensive system of personnel 
    development under Sec. 300.135.
    
        Note 3: If a State has established only one entry-level academic 
    degree for employment of personnel in a specific profession, 
    modification of that standard as necessary to ensure the provision 
    of FAPE to all children in the State would not violate the 
    provisions of Sec. 300.136(b) and (c).
    
    
    Sec. 300.137  Performance goals and indicators.
    
        The State must have on file with the Secretary information to 
    demonstrate that the State--
        (a) Has established goals for the performance of children with 
    disabilities in the State that--
        (1) Will promote the purposes of this part, as stated in 
    Sec. 300.1; and
        (2) Are consistent, to the maximum extent appropriate, with other 
    goals and standards for all children established by the State;
        (b) Has established performance indicators that the State will use 
    to assess progress toward achieving those goals that, at a minimum, 
    address the performance of children with disabilities on assessments, 
    drop-out rates, and graduation rates;
        (c) Every two years, will report to the Secretary and the public on 
    the progress of the State, and of children with disabilities in the 
    State, toward meeting the goals established under paragraph (a) of this 
    section; and
        (d) Based on its assessment of that progress, will revise its State 
    improvement plan under subpart 1 of Part D of the Act as may be needed 
    to improve its performance, if the State receives assistance under that 
    subpart.
    
    (Authority: 20 U.S.C. 1412(a)(16))
    
    
    Sec. 300.138  Participation in assessments.
    
        The State must have on file with the Secretary information to 
    demonstrate that--
        (a) Children with disabilities are included in general State and 
    district-wide assessment programs, with appropriate accommodations if 
    necessary;
        (b) As appropriate, the State or LEA--
        (1) Develops guidelines for the participation of children with 
    disabilities in alternate assessments for those children who cannot 
    participate in State and district-wide assessment programs;
        (2) Develops alternate assessments in accordance with paragraph 
    (b)(1) of this section; and
        (3) Beginning not later than, July 1, 2000, conducts the alternate 
    assessments described in paragraph (b)(2) of this section.
    
    (Authority: 20 U.S.C. 1412(a)(17)(A))
    
        Note: With respect to paragraph (b) of this section, it is 
    assumed that only a small percentage of children with disabilities 
    will need alternative assessments.
    
    
    Sec. 300.139  Reports relating to assessments.
    
        (a) General. In implementing the requirements of Sec. 300.138, the 
    SEA shall make available to the public, and report to the public with 
    the same frequency and in the same detail as it reports on the 
    assessment of nondisabled children, the following information:
        (1) The number of children with disabilities participating--
        (i) In regular assessments; and
        (ii) The number of those children participating in alternate 
    assessments.
        (2) The performance results of the children described in paragraph 
    (a)(1) of this section--
        (i) On regular assessments (beginning not later than July 1, 1998); 
    and
        (ii) On alternate assessments (not later than July 1, 2000), if 
    doing so would be statistically sound and would not result in the 
    disclosure of performance results identifiable to individual children.
    
    [[Page 55078]]
    
        (b) Combined reports. Reports to the public under paragraph (a) of 
    this section must include--
        (1) Aggregated data that include the performance of children with 
    disabilities together with all other children; and
        (2) Disaggregated data on the performance of children with 
    disabilities.
        (c) Disaggregation of data. Data relating to the performance of 
    children described under paragraph (a)(2) of this section must be 
    disaggregated--
        (1) For assessments conducted after July 1, 1998; and
        (2) For assessments conducted before July 1, 1998, if the State is 
    required to disaggregate the data prior to July 1, 1998.
    
    (Authority: 20 U.S.C. 612(a)(17)(B))
    
        Note: Paragraph (b) of this section requires a public agency to 
    report aggregated data that include children with disabilities. 
    However, a public agency is not precluded from also analyzing and 
    reporting data in other ways (such as, maintaining a trendline that 
    was established prior to including children with disabilities in 
    those assessments).
    
    
    Sec. 300.140  [Reserved]
    
    
    Sec. 300.141  SEA responsibility for general supervision.
    
        (a) The State must have on file with the Secretary information that 
    shows that the requirements of Sec. 300.600 are met.
        (b) The information described under paragraph (a) of this section 
    must include a copy of each State statute, State regulation, signed 
    agreement between respective agency officials, and any other documents 
    that show compliance with that paragraph.
    
    (Authority: 20 U.S.C. 1412(a)(11))
    
    
    Sec. 300.142  Methods of ensuring services.
    
        (a) Establishing responsibility for services. The Chief Executive 
    Officer or designee of that officer shall ensure that an interagency 
    agreement or other mechanism for interagency coordination is in effect 
    between each noneducational public agency described in paragraph (b) of 
    this section and the SEA, in order to ensure that all services 
    described in paragraph (b)(1) of this section that are needed to ensure 
    FAPE is provided, including the provision of these services during the 
    pendency of any dispute under paragraph (a)(3) of this section. The 
    agreement or mechanism must include the following:
        (1) Agency financial responsibility. An identification of, or a 
    method for defining, the financial responsibility of each agency for 
    providing services described in paragraph (b)(1) of this section to 
    ensure FAPE to children with disabilities. The financial responsibility 
    of each public agency described in paragraph (b) of this section, 
    including the State Medicaid agency and other public insurers of 
    children with disabilities, must precede the financial responsibility 
    of the LEA (or the State agency responsible for developing the child's 
    IEP).
        (2) Conditions and terms of reimbursement. The conditions, terms, 
    and procedures under which an LEA must be reimbursed by other agencies.
        (3) Interagency disputes. Procedures for resolving interagency 
    disputes (including procedures under which LEAs may initiate 
    proceedings) under the agreement or other mechanism to secure 
    reimbursement from other agencies or otherwise implement the provisions 
    of the agreement or mechanism.
        (4) Coordination of services procedures. Policies and procedures 
    for agencies to determine and identify the interagency coordination 
    responsibilities of each agency to promote the coordination and timely 
    and appropriate delivery of services described in paragraph (b)(1) of 
    this section.
        (b) Obligation of noneducational public agencies.
        (1) General. If any public agency other than an educational agency 
    is otherwise obligated under Federal or State law, or assigned 
    responsibility under State policy or pursuant to paragraph (a) of this 
    section, to provide or pay for any services that are also considered 
    special education or related services (such as, but not limited to, 
    services described in Sec. 300.5 relating to assistive technology 
    devices, Sec. 300.6 relating to assistive technology services, 
    Sec. 300.22 relating to related services, Sec. 300.26 relating to 
    supplementary aids and services, and Sec. 300.27 relating to transition 
    services) that are necessary for ensuring FAPE to children with 
    disabilities within the State, the public agency shall fulfill that 
    obligation or responsibility, either directly or through contract or 
    other arrangement.
        (2) Reimbursement for services by noneducational public agency. If 
    a public agency other than an educational agency fails to provide or 
    pay for the special education and related services described in 
    paragraph (b)(1) of this section, the LEA (or State agency responsible 
    for developing the child's IEP) shall provide or pay for these services 
    to the child. The LEA or State agency may then claim reimbursement for 
    the services from the noneducational public agency that failed to 
    provide or pay for these services and that agency shall reimburse the 
    LEA or State agency in accordance with the terms of the interagency 
    agreement or other mechanism described in paragraph (a)(1) of this 
    section, and the agreement described in paragraph (a)(2) of this 
    section.
        (c) Special rule. The requirements of paragraph (a) of this section 
    may be met through--
        (1) State statute or regulation;
        (2) Signed agreements between respective agency officials that 
    clearly identify the responsibilities of each agency relating to the 
    provision of services; or
        (3) Other appropriate written methods as determined by the Chief 
    Executive Officer of the State or designee of that officer.
        (d) Information. The State must have on file with the Secretary 
    information to demonstrate that the requirements of paragraphs (a) 
    through (c) of this section are met.
        (e) Children with disabilities who are covered by private 
    insurance.
        (1) A public agency may not require parents of children with 
    disabilities, if they would incur a financial cost, to use private 
    insurance proceeds to pay for the services that must be provided to an 
    eligible child under this part.
        (2) For the purposes of this section, the term financial costs 
    includes --
        (i) An out-of-pocket expense such as the payment of a deductible or 
    co-pay amount incurred in filing a claim, but not including incidental 
    costs such as the time needed to file an insurance claim or the postage 
    needed to mail the claim;
        (ii) A decrease in available lifetime coverage or any other benefit 
    under an insurance policy; and
        (iii) An increase in premiums or the discontinuation of the policy.
        (f) Proceeds from public or private insurance. Proceeds from public 
    or private insurance may not be treated as program income for purposes 
    of 34 CFR 80.25.
    
    (Authority: 20 U.S.C. 1412(a)(12) (A), (B), and (C); 1401(8))
    
        Note 1: The House Committee Report on Pub. L. 105-17 related to 
    methods of ensuring services states:
        A provision is added to the Act to strengthen the obligation to 
    ensure that all services necessary to ensure a free appropriate 
    public education are provided through the coordination of public 
    educational and non-educational programs. This subsection is meant 
    to reinforce two important principles: (1) That the State agency or 
    LEA responsible for developing a child's IEP can look to 
    noneducational agencies such as Medicaid to provide those services 
    they (the non-educational agencies) are otherwise responsible for; 
    and (2) that the State agency or LEA remains responsible for
    
    [[Page 55079]]
    
    ensuring that children receive all the services described in their 
    IEPs in a timely fashion, regardless of whether another agency will 
    ultimately pay for the services.
        The Committee places particular emphasis in the bill on the 
    relationship between schools and the State Medicaid Agency in order 
    to clarify that health services provided to children with 
    disabilities who are Medicaid-eligible and meet the standards 
    applicable to Medicaid, are not disqualified for reimbursement by 
    Medicaid agencies because they are provided services in a school 
    context in accordance with the child's IEP. (H. Rep. 105-95, p. 92 
    (1997))
    
        Note 2: The intent of paragraph (e) of this section is to make 
    clear that services required under Part B of the Act must be 
    provided at no cost to the child's parents, whether they have public 
    or private insurance. The Department, in a Notice of Interpretation 
    published Dec. 30, 1980 at 45 FR 66390 noted that both Part B of the 
    Act and Section 504 of the Rehabilitation Act of 1973 prohibit a 
    public agency from requiring parents, where they would incur a 
    financial cost, to use insurance proceeds to pay for services that 
    are required to be provided to a child with a disability under the 
    FAPE requirements of those statutes. The use of parents' insurance 
    proceeds to pay for services in these circumstances must be 
    voluntary. For example, a family could not be required to access 
    private insurance that is required to enable a child to receive 
    Medicaid services, where that insurance use results in financial 
    costs to the family.
    
        Note 3: If the public agency cannot get parent consent to use 
    private insurance, the public agency may use funds under this part 
    to pay for the service. In addition, in order to avoid financial 
    costs to parents who otherwise would consent to use private 
    insurance, the public agency may use funds under this part to pay 
    the costs of accessing the insurance, e.g., deductible or co-pay 
    amounts.
        Note 4: Paragraph (f) clarifies that, if a public agency 
    receives funds from public or private insurance for services under 
    this part, the public agency is not required to return those funds 
    to the Department or to dedicate those funds for use in this 
    program, although a public agency retains the option of using those 
    funds in this program. If a public agency spends reimbursements from 
    Federal funds (e.g., Medicaid) for services under this part, those 
    funds will not be considered ``State or local'' funds for purposes 
    of the maintenance of effort provisions in Secs. 300.154 and 
    300.231. This is because the expenditure that is reimbursed is 
    considered to be an expenditure of funds from the source that 
    provides the reimbursement.
    
    
    Sec. 300.143  SEA implementation of safeguards.
    
        The State must have on file with the Secretary the procedures that 
    the SEA (and any agency assigned responsibility pursuant to 
    Sec. 300.600(d)) follows to inform each public agency of its 
    responsibility for ensuring effective implementation of procedural 
    safeguards for the children with disabilities served by that public 
    agency.
    
    (Authority: 20 U.S.C. 1412(a)(11); 1415(a))
    
    
    Sec. 300.144  Hearing relating to LEA eligibility.
    
        The State must have on file with the Secretary procedures to ensure 
    that the SEA does not make any final determination that an LEA is not 
    eligible for assistance under Part B of the Act without first giving 
    the LEA reasonable notice and an opportunity for a hearing under 34 CFR 
    76.401(d).
    
    (Authority: 20 U.S.C. 1412(a)(13))
    
    
    Sec. 300.145  Recovery of funds for misclassified children.
    
        The State must have on file with the Secretary policies and 
    procedures that ensure that the State seeks to recover any funds 
    provided under Part B of the Act for services to a child who is 
    determined to be erroneously classified as eligible to be counted under 
    section 611 (a) or (d) of the Act.
    
    (Authority: 20 U.S.C. 1221e-3(a)(1))
    
    
    Sec. 300.146  Suspension and expulsion rates.
    
        The State must have on file with the Secretary information to 
    demonstrate that the following requirements are met:
        (a) General. The SEA examines data to determine if significant 
    discrepancies are occurring in the rate of long-term suspensions and 
    expulsions of children with disabilities--
        (1) Among LEAs in the State; or
        (2) Compared to the rates for nondisabled children within the 
    agencies.
        (b) Review and revision of policies. If the discrepancies described 
    in paragraph (a) of this section are occurring, the SEA reviews and, if 
    appropriate, revises (or requires the affected State agency or LEA to 
    revise) its policies, procedures, and practices relating to the 
    development and implementation of IEPs, the use of behavioral 
    interventions, and procedural safeguards, to ensure that these 
    policies, procedures, and practices comply with the Act.
    
    (Authority: 20 U.S.C. 612(a)(22))
    
    
    Sec. 300.147  Additional information if SEA provides direct services.
    
        (a) If the SEA provides FAPE to children with disabilities, or 
    provides direct services to these children, the agency--
        (1) Shall comply with any additional requirements of Secs. 300.220-
    300.230(a) and 300.234-300.250 as if the agency were an LEA; and
        (2) May use amounts that are otherwise available to the agency 
    under Part B of the Act to serve those children without regard to 
    Sec. 300.184 (relating to excess costs).
        (b) The SEA must have on file with the Secretary information to 
    demonstrate that it meets the requirements of paragraph (a)(1) of this 
    section.
    
    (Authority: 20 U.S.C. 1412(b))
    
    
    Sec. 300.148  Public participation.
    
        (a) The State must ensure that, prior to the adoption of any 
    policies and procedures needed to comply with this part, there are 
    public hearings, adequate notice of the hearings, and an opportunity 
    for comment available to the general public, including individuals with 
    disabilities and parents of children with disabilities consistent with 
    Secs. 300.280-300.284.
        (b) The State must have on file with the Secretary information to 
    demonstrate that the requirements of paragraph (a) of this section are 
    met.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    
    Sec. 300.149  [Reserved]
    
    
    Sec. 300.150  State advisory panel.
    
        The State must have on file with the Secretary information to 
    demonstrate that the State has established and maintains an advisory 
    panel for the purpose of providing policy guidance with respect to 
    special education and related services for children with disabilities 
    in the State in accordance with the requirements of Secs. 300.650-
    300.653.
    
    (Authority: 20 U.S.C. 1412(a)(21)(A))
    
    
    Sec. 300.151  [Reserved]
    
    
    Sec. 300.152  Prohibition against commingling.
    
        The State must have on file with the Secretary an assurance 
    satisfactory to the Secretary that the funds under Part B of the Act 
    are not commingled with State funds.
    
    (Authority: 20 U.S.C. 1412(a)(18)(B))
    
        Note: This assurance is satisfied by the use of a separate 
    accounting system that includes an audit trail of the expenditure of 
    the Part B funds. Separate bank accounts are not required. (See 34 
    CFR 76.702 (Fiscal control and fund accounting procedures).)
    
    
    Sec. 300.153  State-level nonsupplanting.
    
        (a) General. (1) Except as provided in Sec. 300.230, funds paid to 
    a State under Part B of the Act must be used to supplement the level of 
    Federal, State, and local funds (including funds that are not under the 
    direct control of the SEA or LEAs) expended for special education and 
    related services provided to children with disabilities under Part B of 
    the Act and in no case to supplant these Federal, State, and local 
    funds.
    
    [[Page 55080]]
    
        (2) The State must have on file with the Secretary information to 
    demonstrate to the satisfaction of the Secretary that the requirements 
    of paragraph (a)(1) of this section are met.
        (b) Waiver. If the State provides clear and convincing evidence 
    that all children with disabilities have available to them FAPE, the 
    Secretary may waive, in whole or in part, the requirements of paragraph 
    (a) of this section if the Secretary concurs with the evidence provided 
    by the State under Sec. 300.589.
    
    (Authority: 20 U.S.C. 1412(a)(18)(c))
    
    
    Sec. 300.154  Maintenance of State financial support.
    
        (a) General. The State must have on file with the Secretary 
    information to demonstrate that the State will not reduce the amount of 
    State financial support for special education and related services for 
    children with disabilities, or otherwise made available because of the 
    excess costs of educating those children, below the amount of that 
    support for the preceding fiscal year.
        (b) Reduction of funds for failure to maintain support. The 
    Secretary reduces the allocation of funds under section 611 of the Act 
    for any fiscal year following the fiscal year in which the State fails 
    to comply with the requirement of paragraph (a) of this section by the 
    same amount by which the State fails to meet the requirement.
        (c) Waivers for exceptional or uncontrollable circumstances. The 
    Secretary may waive the requirement of paragraph (a) of this section 
    for a State, for one fiscal year at a time, if the Secretary determines 
    that--
        (1) Granting a waiver would be equitable due to exceptional or 
    uncontrollable circumstances such as a natural disaster or a 
    precipitous and unforeseen decline in the financial resources of the 
    State; or
        (2) The State meets the standard in Sec. 300.589 for a waiver of 
    the requirement to supplement, and not to supplant, funds received 
    under Part B of the Act.
        (d) Subsequent years. If, for any fiscal year, a State fails to 
    meet the requirement of paragraph (a) of this section, including any 
    year for which the State is granted a waiver under paragraph (c) of 
    this section, the financial support required of the State in future 
    years under paragraph (a) of this section must be the amount that would 
    have been required in the absence of that failure and not the reduced 
    level of the State's support.
    
    (Authority: 20 U.S.C. 612(a)(19))
    
    
    Sec. 300.155  Policies and procedures for use of Part B funds.
    
        The State must have on file with the Secretary policies and 
    procedures designed to ensure that funds paid to the State under Part B 
    of the Act are spent in accordance with the provisions of Part B.
    
    (Authority: 20 U.S.C. 1412(a)(18)(A))
    
    
    Sec. 300.156  Annual description of use of Part B funds.
    
        (a) In order to receive a grant in any fiscal year a State must 
    annually describe--
        (1) How amounts retained under Sec. 300.602 will be used to meet 
    the requirements of this part;
        (2) How those amounts will be allocated among the activities 
    described in Secs. 300.621 and 300.370 to meet State priorities based 
    on input from LEAs; and
        (3) The percentage of those amounts, if any, that will be 
    distributed to LEAs by formula.
        (b) If a State's plans for use of its funds under Secs. 300.370 and 
    300.620 for the forthcoming year do not change from the prior year, the 
    State may submit a letter to that effect to meet the requirement in 
    paragraph (a) of this section.
    
    (Authority: 20 U.S.C. 1411(f)(5))
    
    LEA and State Agency Eligibility--General
    
    
    Sec. 300.180  Condition of assistance.
    
        An LEA or State agency is eligible for assistance under Part B of 
    the Act for a fiscal year if the agency demonstrates to the 
    satisfaction of the SEA that it meets the conditions in Secs. 300.220-
    300.250.
    
    (Authority: 20 U.S.C. 1413(a))
    
    
    Sec. 300.181  Exception for prior LEA or State agency policies and 
    procedures on file with the SEA.
    
        If an LEA or State agency described in Sec. 300.194 has on file 
    with the SEA policies and procedures that demonstrate that the LEA or 
    State agency meets any requirement of Sec. 300.180, including any 
    policies and procedures filed under Part B of the Act as in effect 
    before June 4, 1997, the SEA shall consider the LEA or State agency to 
    have met the requirement for purposes of receiving assistance under 
    Part B of the Act.
    
    (Authority: 20 U.S.C. 1413(b)(1))
    
    
    Sec. 300.182  Amendments to LEA policies and procedures.
    
        (a) Modification made by an LEA or a State agency. (1) Subject to 
    paragraph (b) of this section, policies and procedures submitted by an 
    LEA or a State agency in accordance with this subpart remain in effect 
    until it submits to the SEA the modifications that the LEA or State 
    agency decides are necessary.
        (2) The provisions of this subpart apply to a modification to an 
    LEA's or State agency's policies and procedures in the same manner and 
    to the same extent that they apply to the LEA's or State agency's 
    original policies and procedures.
        (b) Modifications required by the SEA. The SEA may require an LEA 
    or a State agency to modify its policies and procedures, but only to 
    the extent necessary to ensure the LEA's or State agency's compliance 
    with this part, if--
        (1) After June 4, 1997, the provisions of the Act or the 
    regulations in this part are amended;
        (2) There is a new interpretation of the Act by Federal or State 
    courts; or
        (3) There is an official finding of noncompliance with Federal or 
    State law or regulations.
    
    (Authority: 20 U.S.C. 1413(b))
    
    
    Sec. 300.183  [Reserved]
    
    
    Sec. 300.184  Excess cost requirement.
    
        (a) General. Amounts provided to an LEA under Part B of the Act may 
    be used only to pay the excess costs of providing special education and 
    related services to children with disabilities.
        (b) Definition. As used in this part, the term excess costs means 
    those costs that are in excess of the average annual per-student 
    expenditure in an LEA during the preceding school year for an 
    elementary or secondary school student, as may be appropriate. Excess 
    costs must be computed after deducting--
        (1) Amounts received--
        (i) Under Part B of the Act;
        (ii) Under Part A of title I of the Elementary and Secondary 
    Education Act of 1965; or
        (iii) Under Part A of title VII of that Act; and
        (2) Any State or local funds expended for programs that would 
    qualify for assistance under any of those parts.
        (c) Limitation on use of Part B funds. (1) The excess cost 
    requirement prevents an LEA from using funds provided under Part B of 
    the Act to pay for all of the costs directly attributable to the 
    education of a child with a disability, subject to paragraph (c)(2) of 
    this section.
        (2) The excess cost requirement does not prevent an LEA from using 
    Part B funds to pay for all of the costs directly attributable to the 
    education of a child with a disability in any of the ages 3, 4, 5, 18, 
    19, 20, or 21, if no local or State funds are available for nondisabled
    
    [[Page 55081]]
    
    children in that age range. However, the LEA must comply with the 
    nonsupplanting and other requirements of this part in providing the 
    education and services.
    
    (Authority: 20 U.S.C. 1401(7), 1413(a)(2)(A))
    
    
    Sec. 300.185  Meeting the excess cost requirement.
    
        (a)(1) General. An LEA meets the excess cost requirement if it has 
    spent at least a minimum average amount for the education of its 
    children with disabilities before funds under Part B of the Act are 
    used.
        (2) The amount described in paragraph (a)(1) of this section is 
    determined using the formula in Sec. 300.184(b). This amount may not 
    include capital outlay or debt service.
        (b) Joint establishment of eligibility. If two or more LEAs jointly 
    establish eligibility in accordance with Sec. 300.190, the minimum 
    average amount is the average of the combined minimum average amounts 
    determined under Sec. 300.184 in those agencies for elementary or 
    secondary school students, as the case may be.
    
    (Authority: 20 U.S.C. 1413(a)(2)(A))
    
        Note: The excess cost requirement means that the LEA must spend 
    a certain minimum amount for the education of its children with 
    disabilities before Part B funds are used. This ensures that 
    children served with Part B funds have at least the same average 
    amount spent on them, from sources other than Part B, as do the 
    children in the school district in elementary or secondary school as 
    the case may be.
        Excess costs are those costs of special education and related 
    services that exceed the minimum amount. Therefore, if an LEA can 
    show that it has (on the average) spent the minimum amount for the 
    education of each of its children with disabilities, it has met the 
    excess cost requirement, and all additional costs are excess costs. 
    Part B funds can then be used to pay for these additional costs.
    
    
    Secs. 300.186-300.189  [Reserved]
    
    
    Sec. 300.190  Joint establishment of eligibility.
    
        (a) General. An SEA may require an LEA to establish its eligibility 
    jointly with another LEA if the SEA determines that the LEA would be 
    ineligible under this section because the agency would not be able to 
    establish and maintain programs of sufficient size and scope to 
    effectively meet the needs of children with disabilities.
        (b) Charter school exception. An SEA may not require a charter 
    school that is an LEA to jointly establish its eligibility under 
    paragraph (a) of this section unless it is explicitly permitted to do 
    so under the State's charter school statute.
        (c) Amount of payments. If an SEA requires the joint establishment 
    of eligibility under paragraph (a) of this section, the total amount of 
    funds made available to the affected LEAs must be equal to the sum of 
    the payments that each LEA would have received under Secs. 300.711-
    300.714 if the agencies were eligible for these payments.
    
    (Authority: 20 U.S.C. 1413(e) (1), and (2))
    
    
    Sec. 300.191  [Reserved]
    
    
    Sec. 300.192  Requirements for establishing eligibility.
    
        (a) Requirements for LEAs in general. LEAs that establish joint 
    eligibility under this section must--
        (1) Adopt policies and procedures that are consistent with the 
    State's policies and procedures under Secs. 300.121-300.156; and
        (2) Be jointly responsible for implementing programs that receive 
    assistance under Part B of the Act.
        (b) Requirements for educational service agencies in general. If an 
    educational service agency is required by State law to carry out 
    programs under Part B of the Act, the joint responsibilities given to 
    LEAs under Part B of the Act--
        (1) Do not apply to the administration and disbursement of any 
    payments received by that educational service agency; and
        (2) Must be carried out only by that educational service agency.
        (c) Additional requirement. Notwithstanding any other provision of 
    Secs. 300.190-300.192, an educational service agency shall provide for 
    the education of children with disabilities in the least restrictive 
    environment, as required by Sec. 300.130.
    
    (Authority: 20 U.S.C. 1413(e) (3), and (4))
    
    
    Sec. 300.193  [Reserved]
    
    
    Sec. 300.194  State agency eligibility.
    
        Any State agency that desires to receive a subgrant for any fiscal 
    year under Secs. 300.711-300.714 must demonstrate to the satisfaction 
    of the SEA that--
        (a) All children with disabilities who are participating in 
    programs and projects funded under Part B of the Act receive FAPE, and 
    that those children and their parents are provided all the rights and 
    procedural safeguards described in this part; and
        (b) The agency meets the other conditions of this subpart that 
    apply to LEAs.
    
    (Authority: 20 U.S.C. 1413(i))
    
    
    Sec. 300.195  [Reserved]
    
    
    Sec. 300.196  Notification of LEA or State agency in case of 
    ineligibility.
    
        If the SEA determines that an LEA or State agency is not eligible 
    under Part B of the Act, the SEA shall--
        (a) Notify the LEA or State agency of that determination; and
        (b) Provide the LEA or State agency with reasonable notice and an 
    opportunity for a hearing.
    
    (Authority: 20 U.S.C. 1413(c))
    
    
    Sec. 300.197  LEA and State agency compliance.
    
        (a) General. If the SEA, after reasonable notice and an opportunity 
    for a hearing, finds that an LEA or State agency that has been 
    determined to be eligible under this section is failing to comply with 
    any requirement described in Secs. 300.220-300.250, the SEA shall 
    reduce or may not provide any further payments to the LEA or State 
    agency until the SEA is satisfied that the LEA or State agency is 
    complying with that requirement.
        (b) Notice requirement. Any State agency or LEA in receipt of a 
    notice described in paragraph (a) of this section shall, by means of 
    public notice, take the measures necessary to bring the pendency of an 
    action pursuant to this section to the attention of the public within 
    the jurisdiction of the agency.
        (c) In carrying out its functions under this section, each SEA 
    shall consider any decision resulting from a hearing under 
    Secs. 300.507-300.528 that is adverse to the LEA or State agency 
    involved in the decision.
    
    (Authority: 20 U.S.C. 1413(d))
    
    LEA Eligibility--Specific Conditions
    
    
    Sec. 300.220  Consistency with State policies.
    
        (a) General. The LEA, in providing for the education of children 
    with disabilities within its jurisdiction, must have in effect 
    policies, procedures, and programs that are consistent with the State 
    policies and procedures established under Secs. 300.121-300.156.
        (b) Policies on file with SEA. The LEA must have on file with the 
    SEA the policies and procedures described in paragraph (a) of this 
    section.
    
    (Authority: 20 U.S.C. 1413(a)(1))
    
    
    Sec. 300.221  LEA and State agency implementation of CSPD.
    
        The LEA must have on file with the SEA information to demonstrate 
    that--
        (a) All personnel necessary to carry out Part B of the Act within 
    the jurisdiction of the agency are appropriately and adequately 
    prepared, consistent with the requirements of Secs. 300.380-300.382; 
    and
    
    [[Page 55082]]
    
        (b) To the extent the LEA determines appropriate, it shall 
    contribute to and use the comprehensive system of personnel development 
    of the State established under Sec. 300.135.
    
    (Authority: 20 U.S.C. 1413(a)(3))
    
    
    Sec. 300.222-300.229  [Reserved]
    
    
    Sec. 300.230  Use of amounts.
    
        The LEA must have on file with the SEA information to demonstrate 
    that amounts provided to the LEA under Part B of the Act--
        (a) Will be expended in accordance with the applicable provisions 
    of this part;
        (b) Will be used only to pay the excess costs of providing special 
    education and related services to children with disabilities, 
    consistent with Secs. 300.184-300.185; and
        (c) Will be used to supplement State, local, and other Federal 
    funds and not to supplant those funds.
    
    (Authority: 20 U.S.C. 1413(a)(2)(A))
    
    
    Sec. 300.231  Maintenance of effort.
    
        (a) General. Except as provided in Sec. 300.232 and Sec. 300.233, 
    funds provided to the LEA under Part B of the Act may not be used to 
    reduce the level of expenditures for the education of children with 
    disabilities made by the LEA from local funds below the level of those 
    expenditures for the preceding fiscal year.
        (b) Information. The LEA must have on file with the SEA information 
    to demonstrate that the requirements of paragraph (a) of this section 
    are met.
    
    (Authority: 20 U.S.C. 1413(a)(2)(A))
    
    
    Sec. 300.232  Exception to maintenance of effort.
    
        An LEA may reduce the level of expenditures by the LEA under Part B 
    of the Act below the level of those expenditures for the preceding 
    fiscal year if the reduction is attributable to--
        (a) The voluntary departure, by retirement or otherwise, or 
    departure for just cause, of special education or related services 
    personnel, who are replaced by qualified, lower-salaried staff;
        (b) A decrease in the enrollment of children with disabilities;
        (c) The termination of the obligation of the agency, consistent 
    with this part, to provide a program of special education to a 
    particular child with a disability that is an exceptionally costly 
    program, as determined by the SEA, because the child--
        (1) Has left the jurisdiction of the agency;
        (2) Has reached the age at which the obligation of the agency to 
    provide FAPE to the child has terminated; or
        (3) No longer needs the program of special education; or
        (d) The termination of costly expenditures for long-term purchases, 
    such as the acquisition of equipment or the construction of school 
    facilities.
    
    (Authority: 20 U.S.C. 1413(a)(2)(B))
    
        Note: With respect to the voluntary departure of special 
    education personnel described in paragraph (a) of this section, the 
    House Committee Report on Pub. L. 105-17 (1) clarifies that the 
    intended focus of this exception is on special education personnel 
    who are paid at or near the top of the salary schedule, and (2) sets 
    out guidelines under which this exception may be invoked by an LEA:
        This exception is included in recognition that, in some 
    situations, when higher-salaried personnel depart from their 
    positions in special education, they are replaced by qualified, 
    lower-salaried staff. In such situations, as long as certain 
    safeguards are in effect, the LEA should not be required to maintain 
    the level of the higher-salaried personnel. In order for the LEA to 
    invoke this exception, the agency must ensure that such voluntary 
    retirement or resignation and replacement are in full conformity 
    with existing school board policies in the agency, with the 
    applicable collective bargaining agreement in effect at that time, 
    and with applicable State statutes. (H. Rep. 105-95, p. 96 (1997))
    
    
    Sec. 300.233  Treatment of federal funds in certain fiscal years.
    
        (a)(1) Subject to paragraphs (a)(2) and (b) of this section, for 
    any fiscal year for which amounts appropriated to carry out section 611 
    of the Act exceeds $4,100,000,000, an LEA may treat as local funds up 
    to 20 percent of the amount of funds it receives under Part B of the 
    Act that exceeds the amount it received under Part B of the Act for the 
    previous fiscal year.
        (2) The requirements of Secs. 300.230(c) and 300.231 do not apply 
    with respect to the amount that may be treated as local funds under 
    paragraph (a)(1) of this section.
        (b) If an SEA determines that an LEA is not meeting the 
    requirements of this part, the SEA may prohibit the LEA from treating 
    funds received under Part B of the Act as local funds under paragraph 
    (a)(1) of this section for any fiscal year, but only if it is 
    authorized to do so by the State constitution or a State statute.
    
    (Authority: 20 U.S.C. 1413(a)(2)(C))
    
    
    Sec. 300.234  Schoolwide programs under title I of the ESEA.
    
        (a) An LEA may use funds received under Part B of the Act for any 
    fiscal year to carry out a schoolwide program under section 1114 of the 
    Elementary and Secondary Education Act of 1965, except that the amount 
    used in any program may not exceed--
        (1)(i) The amount received by the LEA under Part B for that fiscal 
    year; divided by
        (ii) The number of children with disabilities in the jurisdiction 
    of the LEA; multiplied by
        (2) The number of children with disabilities participating in the 
    schoolwide program.
        (b) The funds described in paragraph (a) of this section may be 
    used without regard to the requirements of Sec. 300.230(a).
        (c) The funds described in paragraph (a) of this section must be 
    considered as Federal Part B funds for purposes of the calculations 
    required by Secs. 300.230 (b) and (c).
        (d) Except as provided in paragraphs (b) and (c) of this section, 
    all other requirements of Part B must be met by an LEA using Part B 
    funds in accordance with paragraph (a) of this section.
    
        Note: Although IDEA funds may be combined in a schoolwide 
    project, and thus used for services that are not special education 
    and related services, all other requirements of the IDEA must still 
    be met for children with disabilities in schoolwide project schools 
    that combine IDEA funds in a schoolwide project. Thus, children with 
    disabilities in schoolwide project schools must still receive 
    services in accordance with a properly developed IEP and must still 
    be afforded all of the rights and services guaranteed to children 
    with disabilities under the IDEA.
    
    (Authority: 20 U.S.C. 1413(a)(2)(D))
    
    
    Sec. 300.235  Permissive use of funds.
    
        (a) General. Subject to paragraph (b) of this section, funds 
    provided to an LEA under Part B of the Act may be used for the 
    following activities:
        (1) Services and aids that also benefit nondisabled children. For 
    the costs of special education and related services and supplementary 
    aids and services provided in a regular class or other education-
    related setting to a child with a disability in accordance with the IEP 
    of the child, even if one or more nondisabled children benefit from 
    these services.
        (2) Integrated and coordinated services system. To develop and 
    implement a fully integrated and coordinated services system in 
    accordance with Sec. 300.244.
        (b) Application for certain use of funds. An LEA does not violate 
    Secs. 300.152, 300.230, and 300.231 based on its use of funds provided 
    under Part B of the Act in accordance with
    
    [[Page 55083]]
    
    paragraphs (a)(1) and (a)(2) of this section.
    
    (Authority: 20 U.S.C. 1413(a)(4))
    
    
    Sec. 300.236-300.239  [Reserved]
    
    
    Sec. 300.240  Information for SEA.
    
        (a) The LEA shall provide the SEA with information necessary to 
    enable the SEA to carry out its duties under Part B of the Act, 
    including, with respect to Secs. 300.137 and 300.138, information 
    relating to the performance of children with disabilities participating 
    in programs carried out under Part B of the Act.
        (b) The LEA must have on file with the SEA an assurance 
    satisfactory to the SEA that the LEA will comply with the requirements 
    of paragraph (a) of this section.
    
    (Authority: 20 U.S.C. 1413(a)(6))
    
    
    Sec. 300.241  Treatment of charter schools and their students.
    
        The LEA must have on file with the SEA information to demonstrate 
    that in carrying out this part with respect to charter schools that are 
    public schools of the LEA, the LEA will--
        (a) Serve children with disabilities attending those schools in the 
    same manner as it serves children with disabilities in its other 
    schools; and
        (b) Provide funds under Part B of the Act to those schools in the 
    same manner as it provides those funds to its other schools.
    
    (Authority: 20 U.S.C. 1413(a)(5))
    
        Note: The provisions of this part that apply to other public 
    schools also apply to public charter schools. Therefore, children 
    with disabilities who attend public charter schools and their 
    parents retain all rights under this part. With respect to this 
    provision, the House Committee Report on Pub. L. 105-17 states:
        ``The Committee expects that charter schools will be in full 
    compliance with Part B.'' (H. Rep. 105-95, p. 97 (1997))
    
    
    Sec. 300.242  Public information.
    
        The LEA must have on file with the SEA information to demonstrate 
    to the satisfaction of the SEA that it will make available to parents 
    of children with disabilities and to the general public all documents 
    relating to the eligibility of the agency under Part B of the Act.
    
    (Authority: 20 U.S.C. 1413(a)(7))
    
    
    Sec. 300.243  [Reserved]
    
    
    Sec. 300.244  Coordinated services system.
    
        (a) General. An LEA may not use more than 5 percent of the amount 
    the agency receives under Part B of the Act for any fiscal year, in 
    combination with other amounts (which must include amounts other than 
    education funds), to develop and implement a coordinated services 
    system designed to improve results for children and families, including 
    children with disabilities and their families.
        (b) Activities. In implementing a coordinated services system under 
    this section, an LEA may carry out activities that include--
        (1) Improving the effectiveness and efficiency of service delivery, 
    including developing strategies that promote accountability for 
    results;
        (2) Service coordination and case management that facilitate the 
    linkage of IEPs under Part B of the Act and IFSPs under Part C of the 
    Act with individualized service plans under multiple Federal and State 
    programs, such as title I of the Rehabilitation Act of 1973 (vocational 
    rehabilitation), title XIX of the Social Security Act (Medicaid), and 
    title XVI of the Social Security Act (supplemental security income);
        (3) Developing and implementing interagency financing strategies 
    for the provision of education, health, mental health, and social 
    services, including transition services and related services under the 
    Act; and
        (4) Interagency personnel development for individuals working on 
    coordinated services.
        (c) Coordination with certain projects under Elementary and 
    Secondary Education Act of 1965. If an LEA is carrying out a 
    coordinated services project under title XI of the Elementary and 
    Secondary Education Act of 1965 and a coordinated services project 
    under Part B of the Act in the same schools, the agency shall use the 
    amounts under Secs. 300.244 in accordance with the requirements of that 
    title.
    
    (Authority: 20 U.S.C. 1413(f))
    
    
    Sec. 300.245  School-based improvement plan.
    
        (a) General. Each LEA may, in accordance with paragraph (b) of this 
    section, use funds made available under Part B of the Act to permit a 
    public school within the jurisdiction of the LEA to design, implement, 
    and evaluate a school-based improvement plan that is consistent with 
    the purposes described in section 651(b) of the Act and that is 
    designed to improve educational and transitional results for all 
    children with disabilities and, as appropriate, for other children 
    consistent with Sec. 300.235 (a) and (b) in that public school.
        (b) Authority.
        (1) General. A SEA may grant authority to an LEA to permit a public 
    school described in Sec. 300.245 (through a school-based standing panel 
    established under Sec. 300.247(b)) to design, implement, and evaluate a 
    school-based improvement plan described in Sec. 300.245 for a period 
    not to exceed 3 years.
        (2) Responsibility of LEA. If a SEA grants the authority described 
    in paragraph (b)(1) of this section, an LEA that is granted this 
    authority must have the sole responsibility of oversight of all 
    activities relating to the design, implementation, and evaluation of 
    any school-based improvement plan that a public school is permitted to 
    design under this section.
    
    (Authority: 20 U.S.C. 1413 (g)(1) and (g)(2)).
    
    
    Sec. 300.246  Plan requirements.
    
        A school-based improvement plan described in Sec. 300.245 must--
        (a) Be designed to be consistent with the purposes described in 
    section 651(b) of the Act and to improve educational and transitional 
    results for all children with disabilities and, as appropriate, for 
    other children consistent with Sec. 300.235 (a) and (b), who attend the 
    school for which the plan is designed and implemented;
        (b) Be designed, evaluated, and, as appropriate, implemented by a 
    school-based standing panel established in accordance with 
    Sec. 300.247(b);
        (c) Include goals and measurable indicators to assess the progress 
    of the public school in meeting these goals; and
        (d) Ensure that all children with disabilities receive the services 
    described in their IEPs.
    
    (Authority: 20 U.S.C. 1413(g)(3))
    
    
    Sec. 300.247  Responsibilities of the LEA.
    
        An LEA that is granted authority under Sec. 300.245(b) to permit a 
    public school to design, implement, and evaluate a school-based 
    improvement plan shall--
        (a) Select each school under the jurisdiction of the agency that is 
    eligible to design, implement, and evaluate the plan;
        (b) Require each school selected under paragraph (a) of this 
    section, in accordance with criteria established by the LEA under 
    paragraph (c) of this section, to establish a school-based standing 
    panel to carry out the duties described in Sec. 300.246(b);
        (c) Establish--
        (1) Criteria that must be used by the LEA in the selection of an 
    eligible school under paragraph (a) of this section;
        (2) Criteria that must be used by a public school selected under 
    paragraph (a) of this section in the establishment of a school-based 
    standing panel to carry out the duties described in
    
    [[Page 55084]]
    
    Sec. 300.246(b) and that ensure that the membership of the panel 
    reflects the diversity of the community in which the public school is 
    located and includes, at a minimum--
        (i) Parents of children with disabilities who attend a public 
    school, including parents of children with disabilities from unserved 
    and underserved populations, as appropriate;
        (ii) Special education and general education teachers of public 
    schools;
        (iii) Special education and general education administrators, or 
    the designee of those administrators, of those public schools; and
        (iv) Related services providers who are responsible for providing 
    services to the children with disabilities who attend those public 
    schools; and
        (3) Criteria that must be used by the LEA with respect to the 
    distribution of funds under Part B of the Act to carry out this 
    section;
        (d) Disseminate the criteria established under paragraph (c) of 
    this section to local school district personnel and local parent 
    organizations within the jurisdiction of the LEA;
        (e) Require a public school that desires to design, implement, and 
    evaluate a school-based improvement plan to submit an application at 
    the time, in the manner and accompanied by the information, that the 
    LEA shall reasonably require; and
        (f) Establish procedures for approval by the LEA of a school-based 
    improvement plan designed under Part B of the Act.
    
    (Authority: 20 U.S.C. 1413(g)(4))
    
    
    Sec. 300.248  Limitation.
    
        A school-based improvement plan described in Sec. 300.245(a) may be 
    submitted to an LEA for approval only if a consensus with respect to 
    any matter relating to the design, implementation, or evaluation of the 
    goals of the plan is reached by the school-based standing panel that 
    designed the plan.
    
    (Authority: 20 U.S.C. 1413(g)(5))
    
    
    Sec. 300.249  Additional requirements.
    
        (a) Parental involvement. In carrying out the requirements of 
    Secs. 300.245-300.250, an LEA shall ensure that the parents of children 
    with disabilities are involved in the design, evaluation, and, if 
    appropriate, implementation of school-based improvement plans in 
    accordance with this section.
        (b) Plan approval. An LEA may approve a school-based improvement 
    plan of a public school within the jurisdiction of the agency for a 
    period of 3 years, if--
        (1) The approval is consistent with the policies, procedures, and 
    practices established by the LEA and in accordance with Secs. 300.245-
    300.250; and
        (2) A majority of parents of children who are members of the 
    school-based standing panel, and a majority of other members of the 
    school-based standing panel that designed the plan, agree in writing to 
    the plan.
    
    (Authority: 20 U.S.C. 1413(g)(6))
    
    
    Sec. 300.250  Extension of plan.
    
        If a public school within the jurisdiction of an LEA meets the 
    applicable requirements and criteria described in Secs. 300.246 and 
    300.247 at the expiration of the 3-year approval period described 
    Sec. 300.249(b), the agency may approve a school-based improvement plan 
    of the school for an additional 3-year period.
    
    (Authority: 20 U.S.C. 1413(g)(7))
    
    Secretary of the Interior-- Eligibility
    
    
    Sec. 300.260  Submission of information.
    
        The Secretary may provide the Secretary of the Interior amounts 
    under Sec. 300.715 for a fiscal year only if the Secretary of the 
    Interior submits to the Secretary information that--
        (a) Meets the requirements of section 612(a)(1), (3)-(9), (10) (B), 
    (C), (11)-(12), (14)-(17), (20), (21) and (22) of the Act (including 
    monitoring and evaluation activities);
        (b) Meets the requirements of section 612(b) and (e) of the Act;
        (c) Meets the requirements of section 613(a) (1), (2)(A)(i), (6) 
    and (7) of the Act;
        (d) Meets the requirements of this part that implement the sections 
    of the Act listed in paragraphs (a)-(c) of this section;
        (e) Includes a description of how the Secretary of the Interior 
    will coordinate the provision of services under Part B of the Act with 
    LEAs, tribes and tribal organizations, and other private and Federal 
    service providers;
        (f) Includes an assurance that there are public hearings, adequate 
    notice of the hearings, and an opportunity for comment afforded to 
    members of tribes, tribal governing bodies, and affected local school 
    boards before the adoption of the policies, programs, and procedures 
    described in paragraph (a) of this section;
        (g) Includes an assurance that the Secretary of the Interior will 
    provide the information that the Secretary may require to comply with 
    section 618 of the Act, including data on the number of children and 
    youth with disabilities served and the types and amounts of services 
    provided and needed;
        (h) Includes an assurance that the Secretary of the Interior and 
    the Secretary of Health and Human Services have entered into a 
    memorandum of agreement, to be provided to the Secretary, for the 
    coordination of services, resources, and personnel between their 
    respective Federal, State, and local offices and with State and LEAs 
    and other entities to facilitate the provision of services to Indian 
    children with disabilities residing on or near reservations (the 
    agreement must provide for the apportionment of responsibilities and 
    costs including, but not limited to, child find, evaluation, diagnosis, 
    remediation or therapeutic measures, and (if appropriate) equipment and 
    medical or personal supplies as needed for a child to remain in school 
    or a program).
        (i) Includes an assurance that the Department of the Interior will 
    cooperate with the Department in its exercise of monitoring and 
    oversight of this application, and any agreements entered into between 
    the Secretary of the Interior and other entities under Part B of the 
    Act, and will fulfill its duties under Part B of the Act. Section 
    616(a) of the Act applies to the information described in this section.
    
    (Authority: 20 U.S.C. 1411(i)(2))
    
    
    Sec. 300.261  Public participation.
    
        In fulfilling the requirements of Sec. 300.260 the Secretary of the 
    Interior shall provide for public participation consistent with 
    Secs. 300.280-300.284.
    
    (Authority: 20 U.S.C. 1411(i))
    
    
    Sec. 300.262  Use of Part B funds.
    
        (a) The Department of the Interior may use five percent of its 
    payment under Sec. 300.715 in any fiscal year, or $500,000, whichever 
    is greater, for administrative costs in carrying out the provisions of 
    this part.
        (b) Payments to the Secretary of the Interior under Sec. 300.716 
    must be used in accordance with that section.
    
    (Authority: 20 U.S.C. 1411(i))
    
    
    Sec. 300.263  Plan for coordination of services.
    
        (a) The Secretary of the Interior shall develop and implement a 
    plan for the coordination of services for all Indian children with 
    disabilities residing on reservations covered under Part B of the Act.
        (b) The plan must provide for the coordination of services 
    benefiting these children from whatever source, including tribes, the 
    Indian Health Service, other BIA divisions, and other Federal agencies.
    
    [[Page 55085]]
    
        (c) In developing the plan, the Secretary of the Interior shall 
    consult with all interested and involved parties.
        (d) The plan must be based on the needs of the children and the 
    system best suited for meeting those needs, and may involve the 
    establishment of cooperative agreements between the BIA, other Federal 
    agencies, and other entities.
        (e) The plan also must be distributed upon request to States, State 
    and LEAs, and other agencies providing services to infants, toddlers, 
    and children with disabilities, to tribes, and to other interested 
    parties.
    
    (Authority: 20 U.S.C. 1411(i)(4))
    
    
    Sec. 300.264  Definitions.
    
        (a) Indian. As used in this part, the term Indian means an 
    individual who is a member of an Indian tribe.
        (b) Indian tribe. As used in this part, the term Indian tribe means 
    any Federal or State Indian tribe, band, rancheria, pueblo, colony, or 
    community, including any Alaska Native village or regional village 
    corporation (as defined in or established under the Alaska Native 
    Claims Settlement Act).
    
    (Authority: 20 U.S.C. 1401(9) and (10))
    
    
    Sec. 300.265  Establishment of advisory board.
    
        (a) To meet the requirements of section 612(a)(21) of the Act, the 
    Secretary of the Interior shall establish, not later than December 4, 
    1997 under the BIA, an advisory board composed of individuals involved 
    in or concerned with the education and provision of services to Indian 
    infants, toddlers, children, and youth with disabilities, including 
    Indians with disabilities, Indian parents or guardians of the children, 
    teachers, service providers, State and local educational officials, 
    representatives of tribes or tribal organizations, representatives from 
    State Interagency Coordinating Councils under section 641 of the Act in 
    States having reservations, and other members representing the various 
    divisions and entities of the BIA. The chairperson must be selected by 
    the Secretary of the Interior.
        (b) The advisory board shall--
        (1) Assist in the coordination of services within the BIA and with 
    other local, State, and Federal agencies in the provision of education 
    for infants, toddlers, and children with disabilities;
        (2) Advise and assist the Secretary of the Interior in the 
    performance of the Secretary's responsibilities described in section 
    611(i) of the Act;
        (3) Develop and recommend policies concerning effective inter- and 
    intra-agency collaboration, including modifications to regulations, and 
    the elimination of barriers to inter- and intra-agency programs and 
    activities;
        (4) Provide assistance and disseminate information on best 
    practices, effective program coordination strategies, and 
    recommendations for improved educational programming for Indian 
    infants, toddlers, and children with disabilities; and
        (5) Provide assistance in the preparation of information required 
    under Sec. 300.260(g).
    
    (Authority: 20 U.S.C. 1411(i)(5))
    
    
    Sec. 300.266  Annual reports.
    
        The advisory board established under Sec. 300.265 shall prepare and 
    submit to the Secretary of the Interior and to the Congress an annual 
    report containing a description of the activities of the advisory board 
    for the preceding year.
    
    (Authority: 20 U.S.C. 1411(i)(6)(A))
    
    
    Sec. 300.267  Applicable regulations.
    
        The Secretary of the Interior shall comply with the requirements of 
    Secs. 300.301-300.303, 300.305-300.309, 300.340-300.348, 300.351, 
    300.360-300.382, 300.400-300.402, 300.500-300.586, 300.600-300.621, and 
    300.660-300.662.
    
    (Authority: 20 U.S.C. 1411(i)(2)(A))
        Public Participation
    
    
    Sec. 300.280  Public hearings before adopting State policies and 
    procedures.
    
        Prior to its adoption of State policies and procedures related to 
    this part, the SEA shall--
        (a) Make the policies and procedures available to the general 
    public;
        (b) Hold public hearings; and
        (c) Provide an opportunity for comment by the general public on the 
    policies and procedures.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    
    Sec. 300.281  Notice.
    
        (a) The SEA shall provide notice to the general public of the 
    public hearings.
        (b) The notice must be in sufficient detail to inform the general 
    public about--
        (1) The purpose and scope of the State policies and procedures and 
    their relation to Part B of the Act;
        (2) The availability of the State policies and procedures;
        (3) The date, time, and location of each public hearing;
        (4) The procedures for submitting written comments about the 
    policies and procedures; and
        (5) The timetable for submitting the policies and procedures to the 
    Secretary for approval.
        (c) The notice must be published or announced--
        (1) In newspapers or other media, or both, with circulation 
    adequate to notify the general public about the hearings; and
        (2) Enough in advance of the date of the hearings to afford 
    interested parties throughout the State a reasonable opportunity to 
    participate.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    
    Sec. 300.282  Opportunity to participate; comment period.
    
        (a) The SEA shall conduct the public hearings at times and places 
    that afford interested parties throughout the State a reasonable 
    opportunity to participate.
        (b) The policies and procedures must be available for comment for a 
    period of at least 30 days following the date of the notice under 
    Sec. 300.281.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    
    Sec. 300.283  Review of public comments before adopting policies and 
    procedures.
    
        Before adopting the policies and procedures, the SEA shall--
        (a) Review and consider all public comments; and
        (b) Make any necessary modifications in those policies and 
    procedures.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    
    Sec. 300.284  Publication and availability of approved policies and 
    procedures.
    
        After the Secretary approves a State's policies and procedures, the 
    SEA shall give notice in newspapers or other media, or both, that the 
    policies and procedures are approved. The notice must name places 
    throughout the State where the policies and procedures are available 
    for access by any interested person.
    
    (Authority: 20 U.S.C. 1412(a)(20))
    
    Subpart C--Services
    
        Free Appropriate Public Education.
    
    
    Sec. 300.300  Provision of FAPE.
    
        (a) General. Subject to paragraphs (b) and (c) of this section and 
    Sec. 300.311, each State receiving assistance under this part shall 
    ensure that FAPE is available to all children with disabilities, aged 3 
    through 21, residing in the State, including children with disabilities 
    who have been suspended or expelled from school.
        (b) Exception for age ranges 3-5 and 18-21. (1) This paragraph 
    provides the rules for applying the requirements in paragraph (a) of 
    this section to children with disabilities aged 3, 4, 5, 18, 19, 20 and 
    21 within the State:
        (2) If State law or a court order requires the State to provide 
    education
    
    [[Page 55086]]
    
    for children with disabilities in any disability category in any of 
    these age groups, the State must make FAPE available to all children 
    with disabilities of the same age who have that disability.
        (3) If a public agency provides education to nondisabled children 
    in any of these age groups, it must make FAPE available to at least a 
    proportionate number of children with disabilities of the same age.
        (4) If a public agency provides education to 50 percent or more of 
    its children with disabilities in any disability category in any of 
    these age groups, it must make FAPE available to all its children with 
    disabilities of the same age who have that disability. This provision 
    does not apply to children aged 3 through 5 for any fiscal year for 
    which the State receives a grant under section 619(a)(1) of the Act.
        (5) If a public agency provides education to a child with a 
    disability in any of these age groups, it must make FAPE available to 
    that child and provide that child and his or her parents all of the 
    rights under Part B of the Act and this part.
        (6) A State is not required to make FAPE available to a child with 
    a disability in one of these age groups if--
        (i) State law expressly prohibits, or does not authorize, the 
    expenditure of public funds to provide education to nondisabled 
    children in that age group; or
        (ii) The requirement is inconsistent with a court order that 
    governs the provision of free public education to children with 
    disabilities in that State.
        (c) Children aged 3 through 21 on Indian reservations. With the 
    exception of children identified in Sec. 300.715(b) and (c), the SEA 
    shall ensure that all of the requirements of Part B are implemented for 
    all children aged 3 through 21 on reservations.
    
    (Authority: 20 U.S.C. 1412(a)(1), 1411(i)(1)(C), S. Rep. No. 94-168, 
    p. 19 (1975))
    
        Note 1: The requirement to make FAPE available applies to all 
    children with disabilities within the State who are in the age 
    ranges required under Sec. 300.300 and who need special education 
    and related services. This includes children with disabilities 
    already in school and children with less severe disabilities.
        Note 2: In order to be in compliance with Sec. 300.300, each 
    State must ensure that the requirement to identify, locate, and 
    evaluate all children with disabilities is fully implemented by 
    public agencies throughout the State.
    
        Note 3: Under the Act, the age range for the child find 
    requirement (birth through 21) is greater than the mandated age 
    range for providing FAPE. One reason for the broader age requirement 
    under ``child find'' is to enable States to be aware of and plan for 
    younger children who will require special education and related 
    services, especially in any case in which infants and toddlers with 
    disabilities are not participating in the early intervention program 
    under Part C of the Act. It also ties in with the full educational 
    opportunity goal requirement that has the same age range as child 
    find. Moreover, while a State is not required to provide FAPE to 
    children with disabilities below the age ranges mandated under 
    Sec. 300.300, the State may, at its discretion, extend services to 
    those children. (See note 3 following Sec. 300.125 regarding the 
    relationship between the child find requirements under Part B of the 
    Act and those under Part C of the Act.)
    
    
    Sec. 300.301  FAPE--methods and payments.
    
        (a) Each State may use whatever State, local, Federal, and private 
    sources of support are available in the State to meet the requirements 
    of this part. For example, if it is necessary to place a child with a 
    disability in a residential facility, a State could use joint 
    agreements between the agencies involved for sharing the cost of that 
    placement.
        (b) Nothing in this part relieves an insurer or similar third party 
    from an otherwise valid obligation to provide or to pay for services 
    provided to a child with a disability.
    
    (Authority: 20 U.S.C. 1401(8), 1412(a)(1))
    
    
    Sec. 300.302  Residential placement.
    
        If placement in a public or private residential program is 
    necessary to provide special education and related services to a child 
    with a disability, the program, including non-medical care and room and 
    board, must be at no cost to the parents of the child.
    
    (Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
    
        Note: This requirement applies to placements that are made by 
    public agencies for educational purposes, and includes placements in 
    State-operated schools for children with disabilities, such as a 
    State school for students with deafness or students with blindness.
    
    
    Sec. 300.303  Proper functioning of hearing aids.
    
        Each public agency shall ensure that the hearing aids worn in 
    school by children with hearing impairments, including deafness, are 
    functioning properly.
    
    (Authority: 20 U.S.C. 1412(a)(1))
    
        Note: The report of the House of Representatives on the 1978 
    appropriation bill includes the following statement regarding 
    hearing aids:
        In its report on the 1976 appropriation bill the Committee 
    expressed concern about the condition of hearing aids worn by 
    children in public schools. A study done at the Committee's 
    direction by the Bureau of Education for the Handicapped reveals 
    that up to one-third of the hearing aids are malfunctioning. 
    Obviously, the Committee expects the Office of Education will ensure 
    that hearing impaired school children are receiving adequate 
    professional assessment, follow-up and services. H. R. Rep. No. 95-
    381, p. 67 (1977)
    
    
    Sec. 300.304  Full educational opportunity goal.
    
        Each SEA shall ensure that each public agency establishes and 
    implements a goal of providing full educational opportunity to all 
    children with disabilities in the area served by the public agency.
    
    (Authority: 20 U.S.C. 1412(a)(2))
    
        Note: In meeting the full educational opportunity goal, the 
    Congress also encouraged LEAs to include artistic and cultural 
    activities in programs supported under Part B of the Act. This point 
    is addressed in the following statements from the Senate Report on 
    Pub. L. 94-142:
        The use of the arts as a teaching tool for the handicapped has 
    long been recognized as a viable, effective way not only of teaching 
    special skills, but also of reaching youngsters who had otherwise 
    been unteachable. The Committee envisions that programs under this 
    bill could well include an arts component and, indeed, urges that 
    LEAs include the arts in programs for the handicapped funded under 
    this Act. Such a program could cover both appreciation of the arts 
    by the handicapped youngsters, and the utilization of the arts as a 
    teaching tool per se.
        Museum settings have often been another effective tool in the 
    teaching of handicapped children. For example, the Brooklyn Museum 
    has been a leader in developing exhibits utilizing the heightened 
    tactile sensory skill of the blind. Therefore, in light of the 
    national policy concerning the use of museums in federally supported 
    education programs enunciated in the Education Amendments of 1974, 
    the Committee also urges LEAs to include museums in programs for the 
    handicapped funded under this Act. (S. Rep. No. 94-168, p. 13 
    (1975))
    
    
    Sec. 300.305  Program options.
    
        Each public agency shall take steps to ensure that its children 
    with disabilities have available to them the variety of educational 
    programs and services available to nondisabled children in the area 
    served by the agency, including art, music, industrial arts, consumer 
    and homemaking education, and vocational education.
    
    (Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
    
        Note: The list of program options is not exhaustive, and could 
    include any program or activity in which nondisabled students 
    participate.
    
    
    Sec. 300.306  Nonacademic services.
    
        (a) Each public agency shall take steps to provide nonacademic and
    
    [[Page 55087]]
    
    extracurricular services and activities in the manner as is necessary 
    to afford children with disabilities an equal opportunity for 
    participation in those services and activities.
        (b) Nonacademic and extracurricular services and activities may 
    include counseling services, athletics, transportation, health 
    services, recreational activities, special interest groups or clubs 
    sponsored by the public agency, referrals to agencies that provide 
    assistance to individuals with disabilities, and employment of 
    students, including both employment by the public agency and assistance 
    in making outside employment available.
    
    (Authority: 20 U.S.C. 1412(a)(1))
    
    
    Sec. 300.307  Physical education.
    
        (a) General. Physical education services, specially designed if 
    necessary, must be made available to every child with a disability 
    receiving FAPE.
        (b) Regular physical education. Each child with a disability must 
    be afforded the opportunity to participate in the regular physical 
    education program available to nondisabled children unless--
        (1) The child is enrolled full time in a separate facility; or
        (2) The child needs specially designed physical education, as 
    prescribed in the child's IEP.
        (c) Special physical education. If specially designed physical 
    education is prescribed in a child's IEP, the public agency responsible 
    for the education of that child shall provide the services directly or 
    make arrangements for those services to be provided through other 
    public or private programs.
        (d) Education in separate facilities. The public agency responsible 
    for the education of a child with a disability who is enrolled in a 
    separate facility shall ensure that the child receives appropriate 
    physical education services in compliance with paragraphs (a) and (c) 
    of this section.
    
    (Authority: 20 U.S.C. 1412(a)(25), 1412(a)(5)(A))
    
        Note: The Report of the House of Representatives on Public Law 
    94-142 includes the following statement regarding physical 
    education:
        Special education as set forth in the Committee bill includes 
    instruction in physical education, which is provided as a matter of 
    course to all non-handicapped children enrolled in public elementary 
    and secondary schools. The Committee is concerned that although 
    these services are available to and required of all children in our 
    school systems, they are often viewed as a luxury for handicapped 
    children.
    * * * * *
        The Committee expects the Commissioner of Education to take 
    whatever action is necessary to assure that physical education 
    services are available to all handicapped children, and has 
    specifically included physical education within the definition of 
    special education to make clear that the Committee expects such 
    services, specially designed where necessary, to be provided as an 
    integral part of the educational program of every handicapped child. 
    (H.R. Rep. No. 94-332, p. 9 (1975))
    
    
    Sec. 300.308  Assistive technology.
    
        Each public agency shall ensure that assistive technology devices 
    or assistive technology services, or both, as those terms are defined 
    in Secs. 300.5-300.6, are made available to a child with a disability 
    if required as a part of the child's--
        (a) Special education under Sec. 300.24;
        (b) Related services under Sec. 300.22; or
        (c) Supplementary aids and services under Secs. 300.26 and 
    300.550(b)(2).
    
    (Authority: 20 U.S.C. 1412(a)(12)(B)(i))
    
    
    Sec. 300.309  Extended school year services.
    
        (a) General. (1) Subject to paragraph (a)(2) of this section, each 
    public agency shall ensure that extended school year services are 
    available to each child with a disability to the extent necessary to 
    ensure that FAPE is available to the child.
        (2) The determination of whether a child with a disability needs 
    extended school year services must be made on an individual basis by 
    the child's IEP team, in accordance with Secs. 300.340-300.351.
        (b) Definition. As used in this section, the term extended school 
    year services means special education and related services that--
        (1) Are provided to a child with a disability--
        (i) Beyond the normal school year of the public agency;
        (ii) In accordance with the child's IEP; and
        (iii) At no cost to the parents of the child; and
        (2) Meet the standards of the SEA.
    
    (Authority: 20 U.S.C. 1412(a)(1))
    
        Note 1: In implementing the requirements of this section, an LEA 
    may not limit extended school year services to particular categories 
    of disability or unilaterally limit the duration of services. 
    Imposing those limitations would violate the individually-oriented 
    focus of Part B of the Act. However, with respect to paragraph (b) 
    of this section, nothing in this part requires that every child with 
    a disability is entitled to, or must receive, extended school year 
    services.
    
        Note 2: States may establish standards for use in determining on 
    an individual basis, whether a child with a disability needs 
    extended school year services so long as those standards are not 
    inconsistent with the requirements of Part B of the Act. Factors 
    that States may wish to consider include: likelihood of regression, 
    slow recoupment, and predictive data based on the opinion of 
    professionals.
    
    
    Sec. 300.310  [Reserved]
    
    
    Sec. 300.311  FAPE requirements for students with disabilities in adult 
    prisons.
    
        (a) Exception to FAPE for certain students. The obligation to make 
    FAPE available to all children with disabilities does not apply with 
    respect to students aged 18 through 21 to the extent that State law 
    does not require that special education and related services under Part 
    B of the Act be provided to students with disabilities who, in the last 
    educational placement prior to their incarceration in an adult 
    correctional facility--
        (1) Were not actually identified as being a child with a disability 
    under Sec. 300.7; and
        (2) Did not have an IEP under Part B of the Act.
        (b) Requirements that do not apply. The following requirements do 
    not apply to students with disabilities who are convicted as adults 
    under State law and incarcerated in adult prisons:
        (1) The requirements contained in Sec. 300.138 and 
    Sec. 300.347(a)(5)(i) (relating to participation of children with 
    disabilities in general assessments).
        (2) The requirements in Sec. 300.347(b) (relating to transition 
    planning and transition services), with respect to the students whose 
    eligibility under Part B of the Act will end, because of their age, 
    before they will be eligible to be released from prison based on 
    consideration of their sentence and eligibility for early release.
        (c) Modifications of IEP or placement. (1) Subject to paragraph 
    (c)(2) of this section, the IEP team of a student with a disability, 
    who is convicted as an adult under State law and incarcerated in an 
    adult prison, may modify the student's IEP or placement if the State 
    has demonstrated a bona fide security or compelling penological 
    interest that cannot otherwise be accommodated.
        (2) The requirements of Secs. 300.340(a), 300.347(a) relating to 
    IEPs, and 300.550(b) relating to LRE, do not apply with respect to the 
    modifications described in paragraph (c)(1) of this section.
    
    (Authority: 20 U.S.C. 1412(a)(1), 1414(d)(6))
    
    Evaluations and Reevaluations
    
    
    Sec. 300.320  Initial evaluations.
    
        (a) Each public agency shall ensure that a full and individual 
    evaluation is conducted for each child being considered for special 
    education and related services under Part B of the Act--
    
    [[Page 55088]]
    
        (1) To determine if the child is a ``child with a disability'' 
    under Sec. 300.7; and
        (2) To determine the educational needs of the child.
        (b) In implementing the requirements of paragraph (a) of this 
    section, the public agency shall ensure that--
        (1) The evaluation is conducted in accordance with the procedures 
    described in Secs. 300.530--300.535; and
        (2) The results of the evaluation are used by the child's IEP team 
    in meeting the requirements of Secs. 300.340--300.351.
    
    (Authority: 20 U.S.C. 1414 (a) and (b))
    
    
    Sec. 300.321  Reevaluations.
    
        Each public agency shall ensure that--
        (a) A reevaluation of each child with a disability is conducted in 
    accordance with the requirements of Secs. 300.530--330.536; and
        (b) The results of any reevaluations are used by the child's IEP 
    team under Secs. 300.340-300.350 in reviewing and, as appropriate, 
    revising the child's IEP.
    
    (Authority: 20 U.S.C. 1414(a)(2))
    
    
    Sec. 300.322-300.324  [Reserved]
    
        Individualized Education Programs
    
    
    Sec. 300.340  Definitions.
    
        (a) As used in this part, the term individualized education program 
    means a written statement for a child with a disability that is 
    developed, reviewed, and revised in accordance with Secs. 300.341-
    300.351.
        (b) As used in Secs. 300.347 and 300.348, participating agency 
    means a State or local agency, other than the public agency responsible 
    for a student's education, that is financially and legally responsible 
    for providing transition services to the student.
    
    (Authority: 20 U.S.C. 1401(11))
    
    
    Sec. 300.341  State educational agency responsibility.
    
        (a) Public agencies. The SEA shall ensure that each public agency 
    develops and implements an IEP for each child with a disability served 
    by that agency.
        (b) Private schools and facilities. The SEA shall ensure that an 
    IEP is developed and implemented for each child with a disability who--
        (1) Is placed in or referred to a private school or facility by a 
    public agency; or
        (2) Is enrolled in a religiously-affiliated school or other private 
    school and receives special education or related services from a public 
    agency.
    
    (Authority: 20 U.S.C. 1412(a)(4), (a) (10) (A) and (B))
    
        Note: This section applies to all public agencies, including 
    other State agencies (e.g., departments of mental health and 
    welfare) that provide special education to a child with a disability 
    either directly, by contract, or through other arrangements. Thus, 
    if a State welfare agency contracts with a private school or 
    facility to provide special education to a child with a disability, 
    that agency would be responsible for ensuring that an IEP is 
    developed for the child.
    
    
    Sec. 300.342  When IEPs must be in effect.
    
        (a) At the beginning of each school year, each LEA, SEA, or other 
    State agency, shall have in effect, for each child with a disability 
    within its jurisdiction, an individualized education program, as 
    defined in Sec. 300.340.
        (b) An IEP must--
        (1) Be in effect before special education and related services are 
    provided to a child; and
        (2) Be implemented as soon as possible following the meetings 
    described under Sec. 300.343.
        (c)(1) In the case of a child with a disability aged 3 through 5 
    (or, at the discretion of the SEA a 2-year-old child with a disability 
    who will turn age 3 during the school year), an IFSP that contains the 
    material described in section 636 of the Act, and that is developed in 
    accordance with Secs. 300.340-300.346 and 300.349-300.351, may serve as 
    the IEP of the child if using that plan as the IEP is--
        (i) Consistent with State policy; and
        (ii) Agreed to by the agency and the child's parents.
        (2) In implementing the requirements of paragraph (c)(1) of this 
    section, the public agency shall--
        (i) Provide to the child's parents a detailed explanation of the 
    differences between an IFSP and an IEP; and
        (ii) If the parents choose an IFSP, obtain written informed consent 
    from the parents.
        (d)(1) All IEPs in effect on July 1, 1998 must meet the 
    requirements of Secs. 300.340-300.351.
        (2) The provisions of Secs. 300.340--300.350 that were in effect on 
    June 3, 1997 remain in effect until July 1, 1998.
    
    (Authority: 20 U.S.C. 1414(d)(2) (A) and (B), Pub. L. 105-17, sec. 
    201(a)(1)(C))
    
        Note 1: It is expected that the IEP of a child with a disability 
    will be implemented immediately following the meetings under 
    Sec. 300.343. Exceptions to this would be if (1) the meetings occur 
    during the summer or a vacation period, unless the child requires 
    services during that period, or (2) there are circumstances that 
    require a short delay (e.g., working out transportation 
    arrangements). However, there can be no undue delay in providing 
    special education and related services to the child.
        Note 2: Certain requirements regarding IEPs for students who are 
    incarcerated in adult prisons apply as of June 4, 1997.
        Note 3: At the time that a child with a disability moves from an 
    early intervention program under Part C of the Act to a preschool 
    program under this part, the parent, if the agency agrees, has the 
    option, under paragraph (c) of this section, to allow the child to 
    continue receiving early intervention services under an IFSP, or to 
    begin receiving special education and related services in accordance 
    with an IEP. Because of the importance of the IEP as the statutory 
    vehicle for ensuring FAPE to a child with a disability, paragraph 
    (c)(2) of this section provides that the parents' agreement to use 
    an IFSP for the child instead of an IEP requires written informed 
    consent by the parents that is based on an explanation of the 
    differences between an IFSP and an IEP.
    
    
    Sec. 300.343  IEP meetings.
    
        (a) General. Each public agency is responsible for initiating and 
    conducting meetings for the purpose of developing, reviewing, and 
    revising the IEP of a child with a disability (or, if consistent with 
    State policy and at the discretion of the LEA, and with the concurrence 
    of the parents, an IFSP described in section 636 of the Act for each 
    child with a disability, aged 3 through 5).
        (b) Timelines. (1) Each public agency shall ensure that an offer of 
    services in accordance with an IEP is made to parents within a 
    reasonable period of time from the agency's receipt of parent consent 
    to an initial evaluation.
        (2) In meeting the timeline in paragraph (b)(1) of this section, a 
    meeting to develop an IEP for the child must be conducted within 30-
    days of a determination that the child needs special education and 
    related services.
        (c) Review and revision of IEP. Each public agency shall ensure 
    that the IEP team--
        (1) Reviews the child's IEP periodically, but not less than 
    annually, to determine whether the annual goals for the child are being 
    achieved; and
        (2) Revises the IEP as appropriate to address--
        (i) Any lack of expected progress toward the annual goals described 
    in Sec. 300.347(a), and in the general curriculum, if appropriate;
        (ii) The results of any reevaluation conducted under this section;
        (iii) Information about the child provided to, or by, the parents, 
    as described in Sec. 300.533(a)(1);
        (iv) The child's anticipated needs; or
        (v) Other matters.
    
    (Authority: 20 U.S.C. 1414(d)(3))
    
        Note: For most children, it would be reasonable to expect that a 
    public agency offer services in accordance with an IEP within 60 
    days of receipt of parent consent to initial evaluation.
    
    [[Page 55089]]
    
    Sec. 300.344  IEP team.
    
        (a) General. The public agency shall ensure that the IEP team for 
    each child with a disability includes--
        (1) The parents of the child;
        (2) At least one regular education teacher of the child (if the 
    child is, or may be, participating in the regular education 
    environment);
        (3) At least one special education teacher, or if appropriate, at 
    least one special education provider of the child;
        (4) A representative of the LEA who--
        (i) Is qualified to provide, or supervise the provision of, 
    specially designed instruction to meet the unique needs of children 
    with disabilities;
        (ii) Is knowledgeable about the general curriculum; and
        (iii) Is knowledgeable about the availability of resources of the 
    LEA;
        (5) An individual who can interpret the instructional implications 
    of evaluation results, who may be a member of the team described in 
    paragraphs (a) (2) through (6) of this section;
        (6) At the discretion of the parent or the agency, other 
    individuals who have knowledge or special expertise regarding the 
    child, including related services personnel as appropriate; and
        (7) If appropriate, the child.
        (b) Transition services participants. (1) Under paragraph (a)(7) of 
    this section, the public agency shall invite a student with a 
    disability of any age if a purpose of the meeting will be the 
    consideration of the statement of transition services needs or 
    statement of needed transition services for the student under 
    Sec. 300.347(b)(1).
        (2) If the student does not attend the IEP meeting, the public 
    agency shall take other steps to ensure that the student's preferences 
    and interests are considered.
        (3)(i) In implementing the requirements of paragraph (b)(1) of this 
    section, the public agency also shall invite a representative of any 
    other agency that is likely to be responsible for providing or paying 
    for transition services.
        (ii) If an agency invited to send a representative to a meeting 
    does not do so, the public agency shall take other steps to obtain 
    participation of the other agency in the planning of any transition 
    services.
    
    (Authority: 20 U.S.C. 1414(d)(1)(B))
    
        Note: The regular education teacher participating in a child's 
    IEP meeting should be the teacher who is, or may be, responsible for 
    implementing the IEP, so that the teacher can participate in 
    discussions about how best to teach the child.
        If the child has more than one teacher, the LEA may designate 
    which teacher or teachers will participate. In a situation in which 
    all of the child's teachers do not participate in the IEP meeting, 
    the LEA is encouraged to seek input from teachers who will not be 
    attending, and should ensure that any teacher not attending the 
    meeting is informed about the results of the meeting (including 
    receiving a copy of the IEP). In the case of a child whose behavior 
    impedes the learning of the child or others, the LEA is encouraged 
    to have a person knowledgeable about positive behavior strategies at 
    the IEP meeting.
        Similarly, the special education teacher or provider 
    participating in a child's IEP meeting should be the person who is, 
    or will be, responsible for implementing the IEP. If, for example, 
    the child's disability is a speech impairment, the teacher could be 
    the speech-language pathologist.
    
    
    Sec. 300.345  Parent participation.
    
        (a) Each public agency shall take steps to ensure that one or both 
    of the parents of a child with a disability are present at each IEP 
    meeting or are afforded the opportunity to participate, including--
        (1) Notifying parents of the meeting early enough to ensure that 
    they will have an opportunity to attend; and
        (2) Scheduling the meeting at a mutually agreed on time and place. 
    (b)(1) The notice under paragraph (a)(1) of this section must indicate 
    the purpose, time, and location of the meeting and who will be in 
    attendance.
        (2) For a student with a disability beginning at age 14, or 
    younger, if appropriate, the notice must also--
        (i) Indicate that a purpose of the meeting will be the development 
    of a statement of the transition services needs of the student required 
    in Sec. 300.347(b)(1)(i); and
        (ii) Indicate that the agency will invite the student.
        (3) For a student with a disability beginning at age 16, or 
    younger, if appropriate, the notice must--
        (i) Indicate that a purpose of the meeting is the consideration of 
    needed transition services for the student required in 
    Sec. 300.347(b)(1)(ii);
        (ii) Indicate that the agency will invite the student; and
        (iii) Identify any other agency that will be invited to send a 
    representative.
        (c) If neither parent can attend, the public agency shall use other 
    methods to ensure parent participation, including individual or 
    conference telephone calls.
        (d) A meeting may be conducted without a parent in attendance if 
    the public agency is unable to convince the parents that they should 
    attend. In this case the public agency must have a record of its 
    attempts to arrange a mutually agreed on time and place, such as--
        (1) Detailed records of telephone calls made or attempted and the 
    results of those calls;
        (2) Copies of correspondence sent to the parents and any responses 
    received; and
        (3) Detailed records of visits made to the parent's home or place 
    of employment and the results of those visits.
        (e) The public agency shall take whatever action is necessary to 
    ensure that the parent understands the proceedings at a meeting, 
    including arranging for an interpreter for parents with deafness or 
    whose native language is other than English.
        (f) The public agency shall give the parent, on request, a copy of 
    the IEP.
    
    (Authority: 20 U.S.C. 1414(d)(1)(B)(i))
    
        Note: The notice in paragraph (a) of this section could also 
    inform parents that they may bring other people to the meeting 
    consistent with Sec. 300.344(a)(6). As indicated in paragraph (d) of 
    this section, the procedure used to notify parents (whether oral or 
    written or both) is left to the discretion of the agency, but the 
    agency must keep a record of its efforts to contact parents.
    
    
    Sec. 300.346  Development, review, and revision of IEP.
    
        (a) Development of IEP.
        (1) General. In developing each child's IEP, the IEP team, shall 
    consider--
        (i) The strengths of the child and the concerns of the parents for 
    enhancing the education of their child; and
        (ii) The results of the initial or most recent evaluation of the 
    child.
        (2) Consideration of special factors. The IEP team also shall--
        (i) In the case of a child whose behavior impedes his or her 
    learning or that of others, consider, if appropriate, strategies, 
    including positive behavioral interventions, strategies, and supports 
    to address that behavior;
        (ii) In the case of a child with limited English proficiency, 
    consider the language needs of the child as these needs relate to the 
    child's IEP;
        (iii) In the case of a child who is blind or visually impaired, 
    provide for instruction in Braille and the use of Braille unless the 
    IEP team determines, after an evaluation of the child's reading and 
    writing skills, needs, and appropriate reading and writing media 
    (including an evaluation of the child's future needs for instruction in 
    Braille or the use of Braille), that instruction in Braille or the use 
    of Braille is not appropriate for the child;
        (iv) Consider the communication needs of the child, and in the case 
    of a child who is deaf or hard of hearing, consider the child's 
    language and
    
    [[Page 55090]]
    
    communication needs, opportunities for direct communications with peers 
    and professional personnel in the child's language and communication 
    mode, academic level, and full range of needs, including opportunities 
    for direct instruction in the child's language and communication mode; 
    and
        (v) Consider whether the child requires assistive technology 
    devices and services.
        (b) Review and Revision of IEP. In conducting a meeting to review, 
    and, if appropriate, revise a child's IEP, the IEP team shall consider 
    the factors described in paragraph (a) of this section.
        (c) Statement in IEP. If, in considering the special factors 
    described in paragraph (a) (1) and (2) of this section, the IEP team 
    determines that a child needs a particular device or service (including 
    an intervention, accommodation, or other program modification) in order 
    for the child to receive FAPE, the IEP team must include a statement to 
    that effect in the child's IEP.
        (d) Requirement with respect to regular education teacher. The 
    regular education teacher of a child with a disability, as a member of 
    the IEP team, must, to the extent appropriate, participate in the 
    development, review, and revision of the child's IEP, including 
    assisting in--
        (1) The determination of appropriate positive behavioral 
    interventions and strategies for the child; and
        (2) The determination of supplementary aids and services, program 
    modifications, and supports for school personnel, consistent with 
    Sec. 300.347(a)(3).
        (e) Construction. Nothing in this section shall be construed to 
    require the IEP team to include information under one component of a 
    child's IEP that is already contained under another component of the 
    child's IEP.
    
    (Authority: 20 U.S.C. 1414 (d) (3) and (4)(B) and (e))
    
        Note 1: The requirements of paragraph (a)(2) of this section 
    (relating to consideration of special factors) were added by Pub. L. 
    105-17. These considerations are essential in assisting the IEP team 
    to develop meaningful goals and other components of a child's IEP, 
    if the considerations point to factors that could impede learning. 
    The results of considering these special factors must, if 
    appropriate, be reflected in the IEP goals, services, and provider 
    responsibilities. As appropriate, consideration of these factors 
    must include a review of valid evaluation data and the observed 
    needs of the child resulting from the evaluation process.
    
        Note 2: With respect to paragraph (a)(2)(iv) of this section 
    (relating to special considerations for a child who is deaf or hard 
    of hearing), the House Committee Report on Pub. L. 105-17 states 
    that the IEP team should implement the provision in a manner 
    consistent with the policy guidance entitled ``Deaf Students 
    Education Services,'' published in the Federal Register (57 FR 
    49274, October 30, 1992) by the Department (H. Rep. No. 105-95, p-
    104 (1997))
    
        Note 3: In developing an IEP for a child with limited English 
    proficiency (LEP), the IEP team must consider how the child's level 
    of English language proficiency affects special education and 
    related services that the child needs in order to receive FAPE. 
    Under Title VI of the Civil Rights Act of 1964, school districts are 
    required to provide LEP students with alternative language services 
    to enable the student to acquire proficiency in English and to 
    provide the student with meaningful access to the content of the 
    educational curriculum that is available to all students, including 
    special education and related services. A LEP student with a 
    disability may require special education and related services for 
    those aspects of the educational program which address the 
    development of English language skills and other aspects of the 
    student's educational program. For a LEP student with a disability, 
    under paragraph (c) of this section, the IEP must address whether 
    the special education and related services that the child needs will 
    be provided in a language other than English.
    
    
    Sec. 300.347  Content of IEP.
    
        (a) General. The IEP for each child must include--
        (1) A statement of the child's present levels of educational 
    performance, including--
        (i) How the child's disability affects the child's involvement and 
    progress in the general curriculum; or
        (ii) For preschool children, as appropriate, how the disability 
    affects the child's participation in appropriate activities;
        (2) A statement of measurable annual goals, including benchmarks or 
    short-term objectives, related to--
        (i) Meeting the child's needs that result from the child's 
    disability to enable the child to be involved in and progress in the 
    general curriculum; and
        (ii) Meeting each of the child's other educational needs that 
    result from the child's disability;
        (3) A statement of the special education and related services and 
    supplementary aids and services to be provided to the child, or on 
    behalf of the child and a statement of the program modifications or 
    supports for school personnel that will be provided for the child--
        (i) To advance appropriately toward attaining the annual goals;
        (ii) To be involved and progress in the general curriculum in 
    accordance with paragraph (a)(1) of this section and to participate in 
    extracurricular and other nonacademic activities; and
        (iii) To be educated and participate with other children with 
    disabilities and nondisabled children in the activities described in 
    this paragraph;
        (4) An explanation of the extent, if any, to which the child will 
    not participate with nondisabled children in the regular class and in 
    the activities described in paragraph (a)(3) of this section;
        (5)(i) A statement of any individual modifications in the 
    administration of State or district-wide assessments of student 
    achievement that are needed in order for the child to participate in 
    the assessment; and
        (ii) If the IEP team determines that the child will not participate 
    in a particular State or district-wide assessment of student 
    achievement (or part of an assessment), a statement of--
        (A) Why that assessment is not appropriate for the child; and
        (B) How the child will be assessed;
        (6) The projected date for the beginning of the services and 
    modifications described in paragraph (a)(3) of this section, and the 
    anticipated frequency, location, and duration of those services and 
    modifications; and
        (7) A statement of--
        (i) How the child's progress toward the annual goals described in 
    paragraph (a)(2) of this section will be measured; and
        (ii) How the child's parents will be regularly informed (through 
    such means as periodic report cards), at least as often as parents are 
    informed of their nondisabled children's progress, of--
        (A) Their child's progress toward the annual goals; and
        (B) The extent to which that progress is sufficient to enable the 
    child to achieve the goals by the end of the year.
        (b) Transition services. (1) The IEP must include--
        (i) For each student beginning at age 14 and younger if 
    appropriate, and updated annually, a statement of the transition 
    service needs of the student under the applicable components of the 
    student's IEP that focuses on the student's courses of study (such as 
    participation in advanced-placement courses or a vocational education 
    program); and
        (ii) For each student beginning at age 16 (or younger, if 
    determined appropriate by the IEP team), a statement of needed 
    transition services for the student, including, if appropriate, a 
    statement of the interagency responsibilities or any needed linkages.
        (2) If the IEP team determines that services are not needed in one 
    or more of the areas specified in Sec. 300.27(c)(1) through (c)(4), the 
    IEP must include a
    
    [[Page 55091]]
    
    statement to that effect and the basis upon which the determination was 
    made.
        (c) Transfer of rights. Beginning at least one year before a 
    student reaches the age of majority under State law, the student's IEP 
    must include a statement that the student has been informed of his or 
    her rights under Part B of the Act, if any, that will transfer to the 
    student on reaching the age of majority, consistent with Sec. 300.517.
        (d) Students with disabilities convicted as adults and incarcerated 
    in adult prisons. Special rules concerning the content of IEPs for 
    students with disabilities convicted as adults and incarcerated in 
    adult prisons are contained in Sec. 300.311(b) and (c).
    
    (Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6)(A)(ii))
    
        Note 1: Although the statute does not mandate transition 
    services for all students below the age of 16, the provision of 
    these services could have a significantly positive effect on the 
    employment and independent living outcomes for many of these 
    students in the future, especially for students who are likely to 
    drop out before age 16.
        Note 2: The IEP provisions added by Pub. L. 105-17 are intended 
    to provide greater access by children with disabilities to the 
    general curriculum and to educational reforms, as an effective means 
    of ensuring better results for these children in preparing them for 
    employment and independent living.
        With respect to increased emphasis on the general curriculum, 
    the House Committee Report on Pub. L. 105-17 includes the following 
    statement:
        The Committee wishes to emphasize that, once a child has been 
    identified as being eligible for special education, the connection 
    between special education and related services and the child's 
    opportunity to experience and benefit from the general education 
    curriculum should be strengthened. The majority of children 
    identified as eligible for special education and related services 
    are capable of participating in the general education curriculum to 
    varying degrees with some adaptations and modifications. This 
    provision is intended to ensure that children's special education 
    and related services are in addition to and are affected by the 
    general education curriculum, not separate from it. (H. Rep. No. 
    105-95, p-99 (1997))
        Note 3: With respect to the impact on States and LEAs in 
    implementing the new IEP provisions relating to accessing the 
    general curriculum, the House Committee Report on Pub. L. 105-17 
    includes the following statement:
        The new emphasis on participation in the general education 
    curriculum is not intended by the Committee to result in major 
    expansions in the size of the IEP of dozens of pages of detailed 
    goals and benchmarks or objectives in every curricular content 
    standard skill. The new focus is intended to produce attention to 
    the accommodations and adjustments necessary for disabled children 
    to access the general education curriculum and the special services 
    which may be necessary for the appropriate participation in 
    particular areas of the curriculum due to the nature of the 
    disability.
        Note 4: With respect to paragraph (a) of this section, the House 
    Committee Report on Pub. L. 105-17 includes the following statement:
        The Committee intends that, while teaching and related services 
    methodologies or approaches are an appropriate topic for discussion 
    and consideration by the IEP team during IEP development or annual 
    review, they are not expected to be written into the IEP. 
    Furthermore, the Committee does not intend that changing particular 
    methods or approaches necessitates an additional meeting of the IEP 
    team.
        Specific day to day adjustments in instructional methods and 
    approaches that are made by either a regular or special education 
    teacher to assist a disabled child to achieve his or her annual 
    goals would not normally require action by the child's IEP team. 
    However, if changes are contemplated in the child's measurable 
    annual goals, benchmarks, or short-term objectives, or in any of the 
    services or program modifications, or other components described in 
    the child's IEP, the LEA must ensure that the child's IEP team is 
    reconvened in a timely manner to address those changes. (H. Rep. No. 
    105-95, pp-100-101 (1997))
        Note 5: The provision in paragraph (a)(7)(ii) of this section 
    concerning regularly informing parents of their child's progress 
    toward annual goals and the extent to which this progress is 
    sufficient to enable the child to achieve the goals by the end of 
    the year is intended to be in addition to, rather than in place of, 
    regular reporting to the parents (as for nondisabled children) of 
    the child's progress in subjects or curricular areas for which the 
    child is not receiving special education.
        Note 6: With respect to paragraph (b)(1) of this section 
    (relating to transition service needs beginning at age 14), the 
    House Committee report on Pub. L. 105-17 includes the following 
    statement:
        The purpose of this requirement is to focus attention on how the 
    child's educational program can be planned to help the child make a 
    successful transition to his or her goals for life after secondary 
    school. This provision is designed to augment, and not replace, the 
    separate transition services requirement, under which children with 
    disabilities beginning no later than age sixteen receive transition 
    services, including instruction, community experiences, the 
    development of employment and other post-school objectives, and, 
    when appropriate, independent living skills and functional 
    vocational evaluation. For example, for a child whose transition 
    goal is a job, a transition service could be teaching the child how 
    to get to the job site on public transportation. (H. Rep. No. 105-
    95, p. 101 (1997))
        Note 7: Each State must, at a minimum, ensure compliance with 
    the transition services requirements in paragraph (b) of this 
    section. However, it would not be a violation of this part for a 
    public agency to begin planning for transition services needs and 
    needed transition services for students younger than age 14 and age 
    16, respectively.
    
    
    Sec. 300.348  Agency responsibilities for transition services.
    
        (a) If a participating agency, other than the local educational 
    agency, fails to provide the transition services described in the IEP 
    in accordance with Sec. 300.347(b)(1)(ii), the local educational agency 
    shall reconvene the IEP team to identify alternative strategies to meet 
    the transition objectives for the child set out in the IEP.
        (b) Nothing in this part relieves any participating agency, 
    including a State vocational rehabilitation agency, of the 
    responsibility to provide or pay for any transition service that the 
    agency would otherwise provide to students with disabilities who meet 
    the eligibility criteria of that agency.
    
    (Authority: 20 U.S.C. 1414(d)(5); 1414(d)(1)(A)(vii))
    
    
    Sec. 300.349  Private school placements by public agencies.
    
        (a) Developing individualized education programs. (1) Before a 
    public agency places a child with a disability in, or refers a child 
    to, a private school or facility, the agency shall initiate and conduct 
    a meeting to develop an IEP for the child in accordance with 
    Sec. 300.347.
        (2) The agency shall ensure that a representative of the private 
    school or facility attends the meeting. If the representative cannot 
    attend, the agency shall use other methods to ensure participation by 
    the private school or facility, including individual or conference 
    telephone calls.
        (b) Reviewing and revising individualized education programs. (1) 
    After a child with a disability enters a private school or facility, 
    any meetings to review and revise the child's IEP may be initiated and 
    conducted by the private school or facility at the discretion of the 
    public agency.
        (2) If the private school or facility initiates and conducts these 
    meetings, the public agency shall ensure that the parents and an agency 
    representative--
        (i) Are involved in any decision about the child's IEP; and
        (ii) Agree to any proposed changes in the program before those 
    changes are implemented.
        (c) Responsibility. Even if a private school or facility implements 
    a child's IEP, responsibility for compliance with this part remains 
    with the public agency and the SEA.
    
    (Authority: 20 U.S.C. 1412(a)(10)(B))
    
    [[Page 55092]]
    
    Sec. 300.350  Children with disabilities in religiously-affiliated or 
    other private schools.
    
        If a child with a disability is enrolled in a religiously-
    affiliated or other private school and receives special education or 
    related services from a public agency, the public agency shall--
        (a) Initiate and conduct meetings to develop, review, and revise an 
    IEP for the child, in accordance with Sec. 300.347; and
        (b) Ensure that a representative of the religiously-affiliated or 
    other private school attends each meeting. If the representative cannot 
    attend, the agency shall use other methods to ensure participation by 
    the private school, including individual or conference telephone calls.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.351  Individualized education program--accountability.
    
        Each public agency must provide special education and related 
    services to a child with a disability in accordance with an IEP. 
    However, Part B of the Act does not require that any agency, teacher, 
    or other person be held accountable if a child does not achieve the 
    growth projected in the annual goals and benchmarks or objectives.
    
    (Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July 
    21, 1975))
    
        Note: This section is intended to relieve concerns that the IEP 
    constitutes a guarantee by the public agency and the teacher that a 
    child will progress at a specified rate. However, this section does 
    not relieve agencies and teachers from making good faith efforts to 
    assist the child in achieving the goals and objectives or benchmarks 
    listed in the IEP. Part B is premised on children receiving the 
    instruction, services and modifications that they need to enable 
    them to make progress in their education. Further, the section does 
    not limit a parent's right to complain and ask for revisions of the 
    child's IEP, or to invoke due process procedures (Sec. 300.507), if 
    the parent feels that these efforts are not being made. This section 
    does not prohibit a State or public agency from establishing its own 
    accountability systems regarding teacher, school or agency 
    performance.
    
    Direct Service by the SEA
    
    
    Sec. 300.360  Use of LEA allocation for direct services.
    
        (a) General. An SEA shall use the payments that would otherwise 
    have been available to an LEA or to a State agency to provide special 
    education and related services directly to children with disabilities 
    residing in the area served by that local agency, or for whom that 
    State agency is responsible, if the SEA determines that the LEA or 
    State agency--
        (1) Has not provided the information needed to establish the 
    eligibility of the agency under Part B of the Act;
        (2) Is unable to establish and maintain programs of FAPE that meet 
    the requirements of this part;
        (3) Is unable or unwilling to be consolidated with one or more LEAs 
    in order to establish and maintain the programs; or
        (4) Has one or more children with disabilities who can best be 
    served by a regional or State program or service-delivery system 
    designed to meet the needs of these children.
        (b) In meeting the requirements in paragraph (a) of this section, 
    the SEA may provide special education and related services directly, by 
    contract, or through other arrangements.
        (c) The excess cost requirements of Secs. 300.184 and 300.185 do 
    not apply to the SEA.
    
    (Authority: 20 U.S.C. 1413(h)(1))
    
        Note: The SEA, as a recipient of Part B funds, is responsible 
    for ensuring that all public agencies in the State comply with the 
    provisions of the Act, regardless of whether they receive Part B 
    funds. If an LEA elects not to apply for its Part B allotment, the 
    State would be required to use those funds to ensure that FAPE is 
    made available to children residing in the area served by that local 
    agency. However, if the local allotment is not sufficient for this 
    purpose, additional State or local funds would have to be expended 
    in order to ensure that FAPE and the other requirements of the Act 
    are met.
        Moreover, if the LEA is the recipient of any other Federal 
    funds, it would have to be in compliance with 34 CFR 104.31-104.39 
    of the regulations implementing Section 504 of the Rehabilitation 
    Act of 1973. It should be noted that the term ``FAPE'' has different 
    meanings under Part B and Section 504. For example, under Part B, 
    FAPE is a statutory term that requires special education and related 
    services to be provided in accordance with an IEP. However, under 
    Section 504, each recipient must provide an education that includes 
    services that are ``designed to meet individual educational needs of 
    handicapped persons as adequately as the needs of nonhandicapped 
    persons are met * * *''. (34 CFR 104.33(b)). Those regulations state 
    that implementation of an IEP, in accordance with Part B, is one 
    means of meeting the FAPE requirement under section 504.
    
    
    Sec. 300.361  Nature and location of services.
    
        The SEA may provide special education and related services under 
    Sec. 300.360(a) in the manner and at the location it considers 
    appropriate (including regional and State centers). However, the manner 
    in which the education and services are provided must be consistent 
    with the requirements of this part (including the LRE provisions of 
    Secs. 300.550-300.556).
    
    (Authority: 20 U.S.C. 1413(h)(2))
    
    
    Secs. 300.362-300.369  [Reserved]
    
    
    Sec. 300.370  Use of State agency allocations.
    
        (a) Each State shall use any funds it retains under Sec. 300.602 
    and does not use for administration under Sec. 300.620 for any of the 
    following:
        (1) Support and direct services, including technical assistance and 
    personnel development and training.
        (2) Administrative costs of monitoring and complaint investigation, 
    but only to the extent that those costs exceed the costs incurred for 
    those activities during fiscal year 1985.
        (3) To establish and implement the mediation process required by 
    Sec. 300.506, including providing for the costs of mediators and 
    support personnel.
        (4) To assist LEAs in meeting personnel shortages.
        (5) To develop a State Improvement Plan under subpart 1 of Part D 
    of the Act.
        (6) Activities at the State and local levels to meet the 
    performance goals established by the State under Sec. 300.137 and to 
    support implementation of the State Improvement Plan under subpart 1 of 
    Part D of the Act if the State receives funds under that subpart.
        (7) To supplement other amounts used to develop and implement a 
    Statewide coordinated services system designed to improve results for 
    children and families, including children with disabilities and their 
    families, but not to exceed one percent of the amount received by the 
    State under section 611 of the Act. This system must be coordinated 
    with and, to the extent appropriate, build on the system of coordinated 
    services developed by the State under Part C of the Act.
        (8) For subgrants to LEAs for the purposes described in 
    Sec. 300.622.
        (b) For the purposes of paragraph (a) of this section--
        (1) Direct services means services provided to a child with a 
    disability by the State directly, by contract, or through other 
    arrangements; and
        (2) Support services includes implementing the comprehensive system 
    of personnel development under Secs. 300.380-300.382, recruitment and 
    training of hearing officers and surrogate parents, and public 
    information and parent training activities relating to FAPE for 
    children with disabilities.
    
    (Authority: 20 U.S.C. 1411(f)(3))
    
    
    Sec. 300.371  [Reserved]
    
    
    Sec. 300.372  Applicability of nonsupplanting requirement.
    
        A State may use funds it retains under Sec. 300.602 without regard 
    to--
    
    [[Page 55093]]
    
        (a) The prohibition on commingling of funds in Sec. 300.152; and
        (b) The prohibition on supplanting other funds in Sec. 300.153.
    
    (Authority: 20 U.S.C. 1411(f)(1)(C))
    
    Comprehensive System of Personnel Development
    
    
    Sec. 300.380  General.
    
        (a) Each State shall develop and implement a comprehensive system 
    of personnel development that--
        (1) Is consistent with the purposes of this part and with section 
    635(a)(8) of the Act;
        (2) Is designed to ensure an adequate supply of qualified special 
    education, regular education, and related services personnel;
        (3) Meets the requirements of Secs. 300.381 and 300.382; and
        (4) Is updated at least every five years.
        (b) A State that has a State improvement grant has met the 
    requirements of paragraph (a) of this section.
    
    (Authority: 20 U.S.C. 1412(a)(14))
    
    
    Sec. 300.381  Adequate supply of qualified personnel.
    
        Each State must include, at least, an analysis of State and local 
    needs for professional development for personnel to serve children with 
    disabilities that includes, at a minimum--
        (a) The number of personnel providing special education and related 
    services; and
        (b) Relevant information on current and anticipated personnel 
    vacancies and shortages (including the number of individuals described 
    in paragraph (a) of this section with temporary certification), and on 
    the extent of certification or retraining necessary to eliminate these 
    shortages, that is based, to the maximum extent possible, on existing 
    assessments of personnel needs.
    
    (Authority: 20 U.S.C. 1453(b)(2)(B))
    
    
    Sec. 300.382  Improvement strategies.
    
        Each State must describe the strategies the State will use to 
    address the needs identified under Sec. 300.381. These strategies must 
    include how the State will address the identified needs for in-service 
    and pre-service preparation to ensure that all personnel who work with 
    children with disabilities (including both professional and 
    paraprofessional personnel who provide special education, general 
    education, related services, or early intervention services) have the 
    skills and knowledge necessary to meet the needs of children with 
    disabilities. The plan must include a description of how--
        (a) The State will prepare general and special education personnel 
    with the content knowledge and collaborative skills needed to meet the 
    needs of children with disabilities including how the State will work 
    with other States on common certification criteria;
        (b) The State will prepare professionals and paraprofessionals in 
    the area of early intervention with the content knowledge and 
    collaborative skills needed to meet the needs of infants and toddlers 
    with disabilities;
        (c) The State will work with institutions of higher education and 
    other entities that (on both a pre-service and an in-service basis) 
    prepare personnel who work with children with disabilities to ensure 
    that those institutions and entities develop the capacity to support 
    quality professional development programs that meet State and local 
    needs;
        (d) The State will work to develop collaborative agreements with 
    other States for the joint support and development of programs to 
    prepare personnel for which there is not sufficient demand within a 
    single State to justify support or development of such a program of 
    preparation;
        (e) The State will work in collaboration with other States, 
    particularly neighboring States, to address the lack of uniformity and 
    reciprocity in credentialing of teachers and other personnel;
        (f) The State will enhance the ability of teachers and others to 
    use strategies, such as behavioral interventions, to address the 
    conduct of children with disabilities that impedes the learning of 
    children with disabilities and others;
        (g) The State will acquire and disseminate, to teachers, 
    administrators, school board members, and related services personnel, 
    significant knowledge derived from educational research and other 
    sources, and how the State will, if appropriate, adopt promising 
    practices, materials, and technology;
        (h) The State will recruit, prepare, and retain qualified 
    personnel, including personnel with disabilities and personnel from 
    groups that are under-represented in the fields of regular education, 
    special education, and related services;
        (i) The plan is integrated, to the maximum extent possible, with 
    other professional development plans and activities, including plans 
    and activities developed and carried out under other Federal and State 
    laws that address personnel recruitment and training; and
        (j) The State will provide for the joint training of parents and 
    special education, related services, and general education personnel.
    
    (Authority: 20 U.S.C. 1453 (c)(3)(D))
    
    
    Sec. 300.383--300.387  [Reserved]
    
    Subpart D--Children in Private Schools
    
        Children With Disabilities in Private Schools Placed or Referred by 
    Public Agencies
    
    
    Sec. 300.400  Applicability of Secs. 300.400--300.402.
    
        Sections Secs. 300.401--300.402 apply only to children with 
    disabilities who are or have been placed in or referred to a private 
    school or facility by a public agency as a means of providing special 
    education and related services.
    
    (Authority: 20 U.S.C. 1412(a)(10)(B))
    
    
    Sec. 300.401  Responsibility of SEA.
    
        Each SEA shall ensure that a child with a disability who is placed 
    in or referred to a private school or facility by a public agency--
        (a) Is provided special education and related services--
        (1) In conformance with an IEP that meets the requirements of 
    Secs. 300.340--300.350;
        (2) At no cost to the parents; and
        (3) At a school or facility that meets the standards that apply to 
    the SEA and LEAs (including the requirements of this part); and
        (b) Has all of the rights of a child with a disability who is 
    served by a public agency.
    
    (Authority: 20 U.S.C. 1412(a)(10)(B))
    
    
    Sec. 300.402  Implementation by SEA.
    
    In implementing Sec. 300.401, the SEA shall--
    
        (a) Monitor compliance through procedures such as written reports, 
    on-site visits, and parent questionnaires;
        (b) Disseminate copies of applicable standards to each private 
    school and facility to which a public agency has referred or placed a 
    child with a disability; and
        (c) Provide an opportunity for those private schools and facilities 
    to participate in the development and revision of State standards that 
    apply to them.
    
    (Authority: 20 U.S.C. 1412(a)(10)(B))
    
    
    Sec. 300.403  Placement of children by parent s if FAPE is at issue.
    
        (a) General. Subject to Sec. 300.451, this part does not require an 
    LEA to pay for the cost of education, including special education and 
    related services, of a child with a disability at a private school or 
    facility if that agency made
    
    [[Page 55094]]
    
    FAPE available to the child and the parents elected to place the child 
    in a private school or facility.
        (b) Disagreements about FAPE. Disagreements between a parent and a 
    public agency regarding the availability of a program appropriate for 
    the child, and the question of financial responsibility, are subject to 
    the due process procedures of Secs. 300.500--300.515.
        (c) Reimbursement for private school placement. If the parents of a 
    child with a disability, who previously received special education and 
    related services under the authority of a public agency, enroll the 
    child in a private elementary or secondary school without the consent 
    of or referral by the public agency, a court or a hearing officer may 
    require the agency to reimburse the parents for the cost of that 
    enrollment if the court or hearing officer finds that the agency had 
    not made FAPE available to the child in a timely manner prior to that 
    enrollment.
        (d) Limitation on reimbursement. The cost of reimbursement 
    described in paragraph (c) of this section may be reduced or denied--
        (1) If--
        (i) At the most recent IEP meeting that the parents attended prior 
    to removal of the child from the public school, the parents did not 
    inform the IEP team that they were rejecting the placement proposed by 
    the public agency to provide FAPE to their child, including stating 
    their concerns and their intent to enroll their child in a private 
    school at public expense; or
        (ii) At least ten (10) business days (including any holidays that 
    occur on a business day) prior to the removal of the child from the 
    public school, the parents did not give written notice to the public 
    agency of the information described in paragraph (d)(1)(i) of this 
    section;
        (2) If, prior to the parents' removal of the child from the public 
    school, the public agency informed the parents, through the notice 
    requirements described in Sec. 300.503(a)(1), of its intent to evaluate 
    the child (including a statement of the purpose of the evaluation that 
    was appropriate and reasonable), but the parents did not make the child 
    available for the evaluation; or
        (3) Upon a judicial finding of unreasonableness with respect to 
    actions taken by the parents.
        (e) Exception. Notwithstanding the notice requirement in paragraph 
    (d)(1) of this section, the cost of reimbursement may not be reduced or 
    denied for failure to provide the notice if--
        (1) The parent is illiterate and cannot write in English;
        (2) Compliance with paragraph (d)(1) of this section would likely 
    result in physical or serious emotional harm to the child;
        (3) The school prevented the parent from providing the notice; or
        (4) The parents had not received notice, pursuant to section 615 of 
    the Act, of the notice requirement in paragraph (d)(1) of this section.
    
    (Authority: 20 U.S.C. 1412(a)(10)(C))
    
    Children With Disabilities Enrolled by Their Parents in Private 
    Schools
    
    
    Sec. 300.450  Definition of ``private school children with 
    disabilities.''
    
        As used in this part, private school children with disabilities 
    means children with disabilities enrolled by their parents in private 
    schools or facilities other than children with disabilities covered 
    under Secs. 300.400-300.402.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.451  Child find for private school children with disabilities.
    
        Each public agency must locate, identify and evaluate all private 
    school children, including religiously-affiliated school children, who 
    have disabilities residing in the jurisdiction of the agency in 
    accordance with Secs. 300.125 and 300.220.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
    
    
    Sec. 300.452  Basic requirement--services.
    
        To the extent consistent with their number and location in the 
    State, provision must be made for the participation of private school 
    children with disabilities in the program assisted or carried out under 
    Part B of the Act by providing them with special education and related 
    services in accordance with Secs. 300.453-300.462.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A)(i))
    
    
    Sec. 300.453  Expenditures.
    
        To meet the requirement of Sec. 300.452, each LEA must spend on 
    providing special education and related services to private school 
    children with disabilities--
        (a) For children aged 3 through 21, an amount that is the same 
    proportion of the LEA's total subgrant under sections 611(g) of the Act 
    as the number of private school children with disabilities aged 3 
    through 21 residing in its jurisdiction is to the total number of 
    children with disabilities in its jurisdiction aged 3 through 21; and
        (b) For children aged 3 through 5, an amount that is the same 
    proportion of the LEA's total subgrant under section 619(g) of the Act 
    as the number of private school children with disabilities aged 3 
    through 5 residing in its jurisdiction is to the total number of 
    children with disabilities in its jurisdiction aged 3 through 5.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
        Note: SEAs and LEAs are not prohibited from providing services 
    to private school children with disabilities in excess of those 
    required by this part, consistent with State law or local policy.
    
    
    Sec. 300.454  Services determined.
    
        (a) No individual right to special education and related services. 
    No private school child with a disability has an individual right to 
    receive some or all of the special education and related services that 
    the child would receive if enrolled in a public school. Decisions about 
    the services that will be provided to private school children with 
    disabilities under Secs. 300.452-300.462, must be made in accordance 
    with paragraphs (b), (c) and (d) of this section.
        (b) Consultation with representatives of private school children 
    with disabilities. Each LEA shall consult, in a timely and meaningful 
    way, with appropriate representatives of private school children with 
    disabilities in light of the funding under Sec. 300.453, the number of 
    private school children with disabilities, the needs of private school 
    children with disabilities, and their location to decide--
        (1) Which children will receive services under Sec. 300.452;
        (2) What services will be provided;
        (3) How the services will be provided; and
        (4) How the services provided will be evaluated.
        (c) Genuine opportunity. Each LEA shall give appropriate 
    representatives of private school children with disabilities a genuine 
    opportunity to express their views regarding each matter that is 
    subject to the consultation requirements in this section.
        (d) Timing. The consultation required by paragraph (b) of this 
    section must occur before the LEA makes any decision that affects the 
    opportunities of private school children with disabilities to 
    participate in services under Secs. 300.452-300.462.
        (e) Decisions. The LEA shall make the final decisions with respect 
    to the services to be provided to eligible private school children.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.455  Services provided.
    
        (a) Comparable services. The services provided private school 
    children with disabilities must be comparable in
    
    [[Page 55095]]
    
    quality to services provided to children with disabilities enrolled in 
    public schools.
        (b) Services provided in accordance with an IEP. The IEP for each 
    private school child with a disability who receives services under 
    Sec. 300.452 must address the services that the LEA has determined that 
    it will provide the child in light of the services that the LEA has 
    determined, through the process described in Secs. 300.453-300.454, it 
    will make available to private school children with disabilities.
        (c) Definition. As used in this section, comparable in quality--
        (1) Means that services provided private school children with 
    disabilities must be provided by similarly qualified personnel;
        (2) Does not require the same amount of service for private school 
    children with disabilities as for children with disabilities in public 
    schools; and
        (3) Does not require that any particular child receive service or 
    receive the same amount of service the child would receive in a public 
    school.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.456  Location of services.
    
        (a) On-site. Services provided to private school children with 
    disabilities may be provided on-site at a child's private school, 
    including a religiously-affiliated school, to the extent consistent 
    with law.
        (b) Transportation. (1) Transportation of private school children 
    with disabilities to a site other than a child's private school must be 
    provided if necessary for a child to benefit from or participate in the 
    other services offered.
        (2) The cost of that transportation may be included in calculating 
    whether the LEA has met the requirement of Sec. 300.453.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
        Note 1: The decisions of the Supreme Court in Zobrest v. 
    Catalina Foothills School Dist. (1993) and Agostini v. Felton (1997) 
    make clear that LEAs may provide special education and related 
    services on-site at religiously-affiliated private schools in a 
    manner that does not violate the Establishment Clause of the First 
    Amendment to the U. S. Constitution.
    
        Note 2: With regard to transportation services, school districts 
    are not required to provide transportation from the student's home 
    to the private school, but only to the site where the services are 
    offered, and either return the student to the private school or to 
    the student's home, depending on the timing of the services.
    
    
    Sec. 300.457  Complaints.
    
        (a) Due process inapplicable. The procedures in Secs. 300.504-
    300.515 do not apply to complaints that an LEA has failed to meet the 
    requirements of Secs. 300.452-300.462, including the provision of 
    services indicated on the child's IEP.
        (b) State complaints. Complaints that an SEA or LEA has failed to 
    meet requirements of Secs. 300.451-300.462 may be filed under the 
    procedures in Secs. 300.660-300.662.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.458  Separate classes prohibited.
    
        An LEA may not use funds available under section 611 or 619 of the 
    Act for classes that are organized separately on the basis of school 
    enrollment or religion of the students if--
        (a) The classes are at the same site; and
        (b) The classes include students enrolled in public schools and 
    students enrolled in private schools.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.459  Requirement that funds not benefit a private school.
    
        (a) An LEA may not use funds provided under section 611 or 619 of 
    the Act to finance the existing level of instruction in a private 
    school or to otherwise benefit the private school.
        (b) The LEA shall use funds provided under Part B of the Act to 
    meet the special educational needs of students enrolled in private 
    schools, but not for--
        (1) The needs of a private school; or
        (2) The general needs of the students enrolled in the private 
    school.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.460  Use of public school personnel.
    
        An LEA may use funds available under sections 611 and 619 of the 
    Act to make public personnel available in other than public 
    facilities--
        (a) To the extent necessary to provide services under 
    Secs. 300.450-300.462 for private school children with disabilities; 
    and
        (b) If those services are not normally provided by the private 
    school.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.461  Use of private school personnel.
    
        An LEA may use funds available under sections 611 or 619 of the Act 
    to pay for the services of an employee of a private school if--
        (a) The employee performs the services outside of his or her 
    regular hours of duty; and
        (b) The employee performs the services under public supervision and 
    control.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    
    Sec. 300.462  Requirements concerning property, equipment and supplies 
    for the benefit of private school children with disabilities.
    
        (a) A public agency must keep title to and exercise continuing 
    administrative control of all property, equipment, and supplies that 
    the public agency acquires with funds under section 611 or 619 of the 
    Act for the benefit of private school children with disabilities.
        (b) The public agency may place equipment and supplies in a private 
    school for the period of time needed for the program.
        (c) The public agency shall ensure that the equipment and supplies 
    placed in a private school--
        (1) Are used only for Part B purposes; and
        (2) Can be removed from the private school without remodeling the 
    private school facility.
        (d) The public agency shall remove equipment and supplies from a 
    private school if--
        (1) The equipment and supplies are no longer needed for Part B 
    purposes; or
        (2) Removal is necessary to avoid unauthorized use of the equipment 
    and supplies for other than Part B purposes.
        (e) No funds under Part B of the Act may be used for repairs, minor 
    remodeling, or construction of private school facilities.
    
    (Authority: 20 U.S.C. 1412(a)(10)(A))
    
    Procedures for By-Pass
    
    
    Sec. 300.480  By-pass--general.
    
        (a) The Secretary implements a by-pass if an SEA is, and was on 
    December 2, 1983, prohibited by law from providing for the 
    participation of private school children with disabilities in the 
    program assisted or carried out under Part B of the Act, as required by 
    section 612(a)(10)(A) of the Act and by Secs. 300.452-300.462.
        (b) The Secretary waives the requirement of section 612(a)(10)(A) 
    of the Act and of Secs. 300.452-300.462 if the Secretary implements a 
    by-pass.
    
    (Authority: 20 U.S.C. 1412(f)(1))
    
    
    Sec. 300.481  Provisions for services under a by-pass.
    
        (a) Before implementing a by-pass, the Secretary consults with 
    appropriate public and private school officials, including SEA 
    officials, in the affected State to consider matters such as--
        (1) The prohibition imposed by State law that results in the need 
    for a by-pass;
        (2) The scope and nature of the services required by private school 
    children with disabilities in the State, and the number of children to 
    be served under the by-pass; and
    
    [[Page 55096]]
    
        (3) The establishment of policies and procedures to ensure that 
    private school children with disabilities receive services consistent 
    with the requirements of section 612(a)(10)(A) of the Act and 
    Secs. 300.452-300.462.
        (b) After determining that a by-pass is required, the Secretary 
    arranges for the provision of services to private school children with 
    disabilities in the State in a manner consistent with the requirements 
    of section 612(a)(10)(A) of the Act and Secs. 300.452-300.462 by 
    providing services through one or more agreements with appropriate 
    parties.
        (c) For any fiscal year that a by-pass is implemented, the 
    Secretary determines the maximum amount to be paid to the providers of 
    services by multiplying--
        (1) A per child amount that may not exceed the amount per child 
    provided by the Secretary under Part B of the Act for all children with 
    disabilities in the State for the preceding fiscal year; by
        (2) The number of private school children with disabilities (as 
    defined by Secs. 300.7(a) and 300.450) in the State, as determined by 
    the Secretary on the basis of the most recent satisfactory data 
    available, which may include an estimate of the number of those 
    children with disabilities.
        (d) The Secretary deducts from the State's allocation under Part B 
    of the Act the amount the Secretary determines is necessary to 
    implement a by-pass and pays that amount to the provider of services. 
    The Secretary may withhold this amount from the State's allocation 
    pending final resolution of any investigation or complaint that could 
    result in a determination that a by-pass must be implemented.
    
    (Authority: 20 U.S.C. 1412(f)(2))
    
    Due Process Procedures
    
    
    Sec. 300.482  Notice of intent to implement a by-pass.
    
        (a) Before taking any final action to implement a by-pass, the 
    Secretary provides the affected SEA with written notice.
        (b) In the written notice, the Secretary--
        (1) States the reasons for the proposed by-pass in sufficient 
    detail to allow the SEA to respond; and
        (2) Advises the SEA that it has a specific period of time (at least 
    45 days) from receipt of the written notice to submit written 
    objections to the proposed by-pass and that it may request in writing 
    the opportunity for a hearing to show cause why a by-pass should not be 
    implemented.
        (c) The Secretary sends the notice to the SEA by certified mail 
    with return receipt requested.
    
    (Authority: 20 U.S.C. 1412(f)(3)(A))
    
    
    Sec. 300.483  Request to show cause.
    
        An SEA seeking an opportunity to show cause why a by-pass should 
    not be implemented shall submit a written request for a show cause 
    hearing to the Secretary.
    
    (Authority: 20 U.S.C. 1412(f)(3))
    
    
    Sec. 300.484  Show cause hearing.
    
        (a) If a show cause hearing is requested, the Secretary--
        (1) Notifies the SEA and other appropriate public and private 
    school officials of the time and place for the hearing; and
        (2) Designates a person to conduct the show cause hearing. The 
    designee must not have had any responsibility for the matter brought 
    for a hearing.
        (b) At the show cause hearing, the designee considers matters such 
    as--
        (1) The necessity for implementing a by-pass;
        (2) Possible factual errors in the written notice of intent to 
    implement a by-pass; and
        (3) The objections raised by public and private school 
    representatives.
        (c) The designee may regulate the course of the proceedings and the 
    conduct of parties during the pendency of the proceedings. The designee 
    takes all steps necessary to conduct a fair and impartial proceeding, 
    to avoid delay, and to maintain order.
        (d) The designee may interpret applicable statutes and regulations, 
    but may not waive them or rule on their validity.
        (e) The designee arranges for the preparation, retention, and, if 
    appropriate, dissemination of the record of the hearing.
    
    (Authority: 20 U.S.C. 1412(f)(3))
    
    
    Sec. 300.485  Decision.
    
        (a) The designee who conducts the show cause hearing--
        (1) Issues a written decision that includes a statement of 
    findings; and
        (2) Submits a copy of the decision to the Secretary and sends a 
    copy to each party by certified mail with return receipt requested.
        (b) Each party may submit comments and recommendations on the 
    designee's decision to the Secretary within 15 days of the date the 
    party receives the designee's decision.
        (c) The Secretary adopts, reverses, or modifies the designee's 
    decision and notifies the SEA of the Secretary's final action. That 
    notice is sent by certified mail with return receipt requested.
    
    (Authority: 20 U.S.C. 1412(f)(3))
    
    
    Sec. 300.486  Filing requirements.
    
        (a) Any written submission under Secs. 300.482-300.485 must be 
    filed by hand-delivery, by mail, or by facsimile transmission. The 
    Secretary discourages the use of facsimile transmission for documents 
    longer than five pages.
        (b) The filing date under paragraph (a) of this section is the date 
    the document is--
        (1) Hand-delivered;
        (2) Mailed; or
        (3) Sent by facsimile transmission.
        (c) A party filing by facsimile transmission is responsible for 
    confirming that a complete and legible copy of the document was 
    received by the Department.
        (d) If a document is filed by facsimile transmission, the Secretary 
    or the hearing officer, as applicable, may require the filing of a 
    follow-up hard copy by hand-delivery or by mail within a reasonable 
    period of time.
        (e) If agreed upon by the parties, service of a document may be 
    made upon the other party by facsimile transmission.
    
    (Authority: 20 U.S.C. 1412(f)(3))
    
    
    Sec. 300.487  Judicial review.
    
        If dissatisfied with the Secretary's final action, the SEA may, 
    within 60 days after notice of that action, file a petition for review 
    with the United States Court of Appeals for the circuit in which the 
    State is located. The procedures for judicial review are described in 
    section 612(f)(3)(B)-(D) of the Act.
    
    (Authority: 20 U.S.C. 1412(f)(3)(B)-(D))
    
    Subpart E--Procedural Safeguards
    
    Due Process Procedures for Parents and Children
    
    
    Sec. 300.500  General responsibility of public agencies; definitions.
    
        (a) Responsibility of SEA and other public agencies. Each SEA shall 
    ensure that each public agency establishes, maintains, and implements 
    procedural safeguards that meet the requirements of Secs. 300.500-
    Sec. 300.529.
        (b) Definitions of ``consent,'' ``evaluation,'' and ``personally 
    identifiable.'' As used in this part--
        (1) Consent means that--
        (i) The parent has been fully informed of all information relevant 
    to the activity for which consent is sought, in his or her native 
    language, or other mode of communication;
        (ii) The parent understands and agrees in writing to the carrying 
    out of the activity for which his or her consent is sought, and the 
    consent describes that activity and lists the records (if any) that 
    will be released and to whom; and
    
    [[Page 55097]]
    
        (iii) The parent understands that the granting of consent is 
    voluntary on the part of the parent and may be revoked at any time;
        (2) Evaluation means procedures used in accordance with 
    Secs. 300.530-300.536 to determine whether a child has a disability and 
    the nature and extent of the special education and related services 
    that the child needs. The term means procedures used selectively with 
    an individual child and does not include basic tests administered to or 
    procedures used with all children in a school, grade, or class; and
        (3) Personally identifiable means that information includes--
        (i) The name of the child, the child's parent, or other family 
    member;
        (ii) The address of the child;
        (iii) A personal identifier, such as the child's social security 
    number or student number; or
        (iv) A list of personal characteristics or other information that 
    would make it possible to identify the child with reasonable certainty.
    
    (Authority: 20 U.S.C. 1415(a))
    
        Note: With respect to paragraph (b)(1)(iii) of this section, the 
    parent's ability to revoke consent, if invoked, is not retroactive, 
    i.e., it does not negate an action that has occurred after the 
    consent was given and before it was revoked.
    
    
    Sec. 300.501  Opportunity to examine records; parent participation in 
    meetings.
    
        (a) General. The parents of a child with a disability must be 
    afforded, in accordance with the procedures of Secs. 300.562-300.569, 
    an opportunity to--
        (1) Inspect and review all education records with respect to--
        (i) The identification, evaluation, and educational placement of 
    the child; and
        (ii) The provision of FAPE to the child; and
        (2) Participate in all meetings with respect to--
        (i) The identification, evaluation, and educational placement of 
    the child; and
        (ii) The provision of FAPE to the child.
        (b) Parent participation in meetings. (1) Each public agency shall 
    provide notice consistent with Sec. 300.345 (a)(1) and (b)(1) to ensure 
    that parents of children with disabilities have the opportunity to 
    participate in meetings described in paragraph (a)(2) of this section.
        (2) For purposes of this section, the term ``meetings'' means a 
    prearranged event in which public agency personnel come together at the 
    same time and place to discuss any matter described in paragraph (a)(2) 
    of this section relating to an individual child with a disability. The 
    term does not include informal or unscheduled conversations involving 
    public agency personnel and conversations on issues such as teaching 
    methodology, lesson plans, or coordination of service provision if 
    those issues are not addressed in the child's IEP. The term also does 
    not include preparatory activities that public agency personnel engage 
    in to develop a proposal or response to a parent proposal that will be 
    discussed at a later meeting.
        (c) Parent involvement in placement decisions. (1) Each public 
    agency shall ensure that the parents of each child with a disability 
    are members of any group that makes decisions on the educational 
    placement of their child.
        (2) In implementing the requirements of paragraph (c)(1) of this 
    section, the public agency shall use procedures consistent with the 
    procedures described in Sec. 300.345 (a) through (b)(1).
        (3) If neither parent can participate in a meeting in which a 
    decision is to be made relating to the educational placement of their 
    child, the public agency shall use other methods to ensure their 
    participation, including individual or conference telephone calls, or 
    video conferencing.
        (4) A placement decision may be made by a group without the 
    involvement of the parents, if the public agency is unable to obtain 
    the parents' participation in the decision. In this case, the public 
    agency must have a record of its attempt to ensure their involvement, 
    including information that is consistent with the requirements of 
    Sec. 300.345(d).
        (5) The public agency shall take whatever action is necessary to 
    ensure that the parents understand, and are able to participate in, any 
    group discussions relating to the educational placement of their child, 
    including arranging for an interpreter for parents with deafness, or 
    whose native language is other than English.
    
    (Authority: 20 U.S.C. 1414(f), 1415(b)(1))
    
    
    Sec. 300.502  Independent educational evaluation.
    
        (a) General. (1) The parents of a child with a disability have the 
    right under this part to obtain an independent educational evaluation 
    of the child, subject to paragraphs (b) through (e) of this section.
        (2) Each public agency shall provide to parents, on request, 
    information about where an independent educational evaluation may be 
    obtained.
        (3) For the purposes of this part--
        (i) Independent educational evaluation means an evaluation 
    conducted by a qualified examiner who is not employed by the public 
    agency responsible for the education of the child in question; and
        (ii) Public expense means that the public agency either pays for 
    the full cost of the evaluation or ensures that the evaluation is 
    otherwise provided at no cost to the parent, consistent with 
    Sec. 300.301.
        (b) Parent right to evaluation at public expense. A parent has the 
    right to an independent educational evaluation at public expense if the 
    parent disagrees with an evaluation obtained by the public agency. If a 
    parent requests an independent educational evaluation at public 
    expense, the public agency must, without unnecessary delay, either 
    initiate a hearing under Sec. 300.507 to show that its evaluation is 
    appropriate, or insure an independent educational evaluation is 
    provided at public expense unless the agency demonstrates in a hearing 
    under Sec. 300.507 that the evaluation obtained by the parent did not 
    meet agency criteria. If the public agency initiates a hearing and the 
    final decision is that the agency's evaluation is appropriate, the 
    parent still has the right to an independent educational evaluation, 
    but not at public expense.
        (c) Parent-initiated evaluations. If the parent obtains an 
    independent educational evaluation at private expense, the results of 
    the evaluation--
        (1) Must be considered by the public agency, if it meets agency 
    criteria, in any decision made with respect to the provision of FAPE to 
    the child; and
        (2) May be presented as evidence at a hearing under this subpart 
    regarding that child.
        (d) Requests for evaluations by hearing officers. If a hearing 
    officer requests an independent educational evaluation as part of a 
    hearing, the cost of the evaluation must be at public expense.
        (e) Agency criteria. (1) If an independent educational evaluation 
    is at public expense, the criteria under which the evaluation is 
    obtained, including the location of the evaluation and the 
    qualifications of the examiner, must be the same as the criteria that 
    the public agency uses when it initiates an evaluation.
        (2) Except for the criteria described in paragraph (e)(1) of this 
    section, a public agency may not impose conditions or timelines related 
    to obtaining an independent educational evaluation at public expense.
    
    (Authority: 20 U.S.C. 1415(b)(1))
    
        Note 1: If a parent requests an independent educational 
    evaluation at public expense, there is no requirement under Part B 
    of the Act that the parent specify areas of disagreement with the 
    public agency's evaluation as a prior condition to obtaining
    
    [[Page 55098]]
    
    the independent educational evaluation. Thus, unless a public agency 
    chooses to initiate a due process hearing in accordance with 
    paragraph (b) of this section, the agency must respond to the 
    parent's request by insuring an independent educational evaluation 
    is provided at public expense in a timely manner. A public agency 
    may not impose conditions on obtaining an independent educational 
    evaluation, other than the agency criteria described in paragraph 
    (e) of this section.
    
        Note 2: This section requires public agencies to provide parents 
    with information on how and where an independent educational 
    evaluation of their child at public expense can be obtained. Public 
    agencies are encouraged to make this information widely available to 
    parents in a manner that is readily understandable to the general 
    public so that if parents disagree with an agency evaluation they 
    will have access to the criteria the agency will apply to an IEE.
    
        A public agency may not require that evaluations obtained by 
    parents meet all agency criteria, if doing so would be inconsistent 
    with the parents' right to an IEE. For example, the agency could not 
    require a parent to meet a criterion that required the IEE to be 
    conducted by an agency employee.
    
    
    Sec. 300.503  Prior notice by the public agency; content of notice.
    
        (a) Notice. (1) Written notice that meets the requirements of 
    paragraph (b) of this section must be given to the parents of a child 
    with a disability a reasonable time before the public agency--
        (i) Proposes to initiate or change the identification, evaluation, 
    or educational placement of the child or the provision of FAPE to the 
    child; or
        (ii) Refuses to initiate or change the identification, evaluation, 
    or educational placement of the child or the provision of FAPE to the 
    child.
        (2) If the notice described under paragraph (a)(1) of this section 
    relates to an action proposed by the public agency that also requires 
    parental consent under Sec. 300.505, the agency may give notice at the 
    same time it requests parent consent.
        (b) Content of notice. The notice required under paragraph (a) of 
    this section must include--
        (1) A description of the action proposed or refused by the agency;
        (2) An explanation of why the agency proposes or refuses to take 
    the action;
        (3) A description of any other options that the agency considered 
    and the reasons why those options were rejected;
        (4) A description of each evaluation procedure, test, record, or 
    report the agency used as a basis for the proposed or refused action;
        (5) A description of any other factors that are relevant to the 
    agency's proposal or refusal;
        (6) A statement that the parents of a child with a disability have 
    protection under the procedural safeguards of this part and, if this 
    notice is not an initial referral for evaluation, the means by which a 
    copy of a description of the procedural safeguards can be obtained;
        (7) Sources for parents to contact to obtain assistance in 
    understanding the provisions of this part; and
        (8) A statement informing the parents about the State complaint 
    procedures under Secs. 300.660-300.662, including a description of how 
    to file a complaint and the timelines under those procedures.
        (c) Notice in understandable language. (1) The notice required 
    under paragraph (a) of this section must be--
        (i) Written in language understandable to the general public; and
        (ii) Provided in the native language of the parent or other mode of 
    communication used by the parent, unless it is clearly not feasible to 
    do so.
        (2) If the native language or other mode of communication of the 
    parent is not a written language, the SEA or LEA shall take steps to 
    ensure--
        (i) That the notice is translated orally or by other means to the 
    parent in his or her native language or other mode of communication;
        (ii) That the parent understands the content of the notice; and
        (iii) That there is written evidence that the requirements in 
    paragraphs (c)(2) (i) and (ii) of this section have been met.
    
    (Authority: 20 U.S.C. 1415 (b) (3), (4) and (c), 1414(b)(1))
    
    
    Sec. 300.504  Procedural safeguards notice.
    
        (a) General. A copy of the procedural safeguards available to the 
    parents of a child with a disability must be given to the parents, at a 
    minimum--
        (1) Upon initial referral for evaluation;
        (2) Upon each notification of an IEP meeting;
        (3) Upon reevaluation of the child; and
        (4) Upon receipt of a request for due process under Sec. 300.507.
        (b) Contents. The procedural safeguards notice must include a full 
    explanation of all of the procedural safeguards available under 
    Secs. 300.403, 300.500-300.529, and 300.560-300.577 relating to--
        (1) Independent educational evaluation;
        (2) Prior written notice;
        (3) Parental consent;
        (4) Access to educational records;
        (5) Opportunity to present complaints;
        (6) The child's placement during pendency of due process 
    proceedings;
        (7) Procedures for students who are subject to placement in an 
    interim alternative educational setting;
        (8) Requirements for unilateral placement by parents of children in 
    private schools at public expense;
        (9) Mediation;
        (10) Due process hearings, including requirements for disclosure of 
    evaluation results and recommendations;
        (11) State-level appeals (if applicable in that State);
        (12) Civil actions; and
        (13) Attorneys' fees.
        (c) Notice in understandable language. (1) The notice required 
    under paragraph (a) of this section must be--
        (i) Written in language understandable to the general public; and
        (ii) Provided in the native language of the parent or other mode of 
    communication used by the parent, unless it is clearly not feasible to 
    do so.
        (2) If the native language or other mode of communication of the 
    parent is not a written language, the SEA or LEA shall take steps to 
    ensure--
        (i) That the notice is translated orally or by other means to the 
    parent in his or her native language or other mode of communication;
        (ii) That the parent understands the content of the notice; and
        (iii) That there is written evidence that the requirements in 
    paragraphs (c)(2) (i) and (ii) of this section have been met.
    
    (Authority: 20 U.S.C. 1415(d))
    
    
    Sec. 300.505  Parental consent.
    
        (a)(1) Parental consent must be obtained before--
        (i) Conducting an initial evaluation;
        (ii) Initial provision of special education and related services to 
    a child with a disability in a program providing special education and 
    related services; and
        (iii) Except as provided in paragraph (c) of this section, before 
    conducting any new test as a part of a reevaluation of an eligible 
    child under Part B of the Act.
        (2) Consent for initial evaluation may not be construed as consent 
    for initial placement described in paragraph (a)(1)(ii) of this 
    section.
        (b) Refusal. If the parents of the child with a disability refuse 
    consent for initial evaluation or a reevaluation, the agency may 
    continue to pursue those evaluations by using the due process 
    procedures under Secs. 300.507-300.509, or the mediation procedures 
    under Sec. 300.506 if appropriate, except to the extent inconsistent 
    with State law relating to parental consent.
        (c) Failure to respond to request for reevaluation.
    
    [[Page 55099]]
    
        (1) Informed parental consent need not be obtained for reevaluation 
    if the public agency can demonstrate that it has taken reasonable 
    measures to obtain that consent, and the child's parent has failed to 
    respond.
        (2) To meet the reasonable measures requirement in paragraph (c)(1) 
    of this section, the public agency must use procedures consistent with 
    those in Secs. 300.345(d).
        (d) Additional State consent requirements. In addition to the 
    parental consent requirements described in paragraph (a) of this 
    section, a State may require parental consent for other services and 
    activities under this part if it ensures that each public agency in the 
    State establishes and implements effective procedures to ensure that a 
    parent's refusal to consent does not result in a failure to provide the 
    child with FAPE.
        (e) Limitation. A public agency may not require parental consent as 
    a condition of any benefit to the parent or the child except for the 
    service or activity for which consent is required under paragraph (a) 
    of this section.
    
    (Authority: 20 U.S.C. 1415(b)(3); 1414 (a)(1)(C) and (c)(3))
    
        Note 1: Paragraph (b) of this section means that if the parents 
    of a child with a disability refuse consent for an initial 
    evaluation or any reevaluation, and the agency wishes to pursue the 
    evaluation or reevaluation, it may do so by using the due process or 
    mediation procedures under Part B of the Act unless doing so would 
    be inconsistent with State law relating to parent consent. For 
    example, if State law provides that parents' right to consent to an 
    initial evaluation cannot be overridden, the agency under Part B 
    would not be able to take any action regarding that initial 
    evaluation once parents had refused consent. If State law provided a 
    mechanism different than due process or mediation under Part B as 
    the means to override a parent refusal of consent, the agency would 
    use that State mechanism if it wished to pursue the evaluation.
    
        Note 2: If a State adopts a consent requirement in addition to 
    those described in paragraph (a) of this section and consent is 
    refused, paragraph (e) of this section requires that the public 
    agency must nevertheless provide the services and activities that 
    are not in dispute. For example, if a State requires parental 
    consent to the provision of all services identified in an IEP and 
    the parent refuses to consent to physical therapy services included 
    in the IEP, the agency is not relieved of its obligation to 
    implement those portions of the IEP to which the parent consents.
        If the parent refuses to consent and the public agency 
    determines that the service or activity in dispute is necessary to 
    provide FAPE to the child, paragraph (d) of this section requires 
    that the agency must implement its procedures to override the 
    refusal. This section does not preclude the agency from 
    reconsidering its proposal if it believes that circumstances 
    warrant.
    
        Note 3: If parents refuse consent to a reevaluation that the 
    agency needs to provide appropriate services to the child consistent 
    with Sec. 300.536, the agency must either take appropriate measures, 
    consistent with paragraph (b) of this section to override the 
    parents' refusal of consent, or, if State law prohibits override of 
    parent consent for reevaluation, the agency may cease providing 
    services to the child under Part B of the Act.
    
    
    Sec. 300.506  Mediation.
    
        (a) General. Each public agency shall ensure that procedures are 
    established and implemented to allow parties to disputes involving any 
    matter described in Sec. 300.503(a)(1) to resolve the disputes through 
    a mediation process which, at a minimum, must be available whenever a 
    hearing is requested under Secs. 300.507 or 300.520-300.528.
        (b) Requirements. The procedures must meet the following 
    requirements:
        (1) The procedures must ensure that the mediation process--
        (i) Is voluntary on the part of the parties;
        (ii) Is not used to deny or delay a parent's right to a due process 
    hearing under Sec. 300.506, or to deny any other rights afforded under 
    Part B of the Act; and
        (iii) Is conducted by a qualified and impartial mediator who is 
    trained in effective mediation techniques.
        (2) The State shall maintain a list of individuals who are 
    qualified mediators and knowledgeable in laws and regulations relating 
    to the provision of special education and related services.
        (3) The State shall bear the cost of the mediation process, 
    including the costs of meetings described in paragraph (b)(2) of this 
    section.
        (4) Each session in the mediation process must be scheduled in a 
    timely manner and must be held in a location that is convenient to the 
    parties to the dispute.
        (5) An agreement reached by the parties to the dispute in the 
    mediation process must be set forth in a written mediation agreement.
        (6) Discussions that occur during the mediation process must be 
    confidential and may not be used as evidence in any subsequent due 
    process hearings or civil proceedings and the parties to the mediation 
    process may be required to sign a confidentiality pledge prior to the 
    commencement of the process.
        (c) Impartiality of mediator. An individual who serves as a 
    mediator under this part--
        (1) May not be an employee of--
        (i) Any LEA or any State agency described under Sec. 300.194; or
        (ii) An SEA that is providing direct services to a child who is the 
    subject of the mediation process; and
        (2) Must not have a personal or professional conflict of interest.
        (d) Meeting to encourage mediation. (1) A public agency may 
    establish procedures to require parents who elect not to use the 
    mediation process to meet, at a time and location convenient to the 
    parents, with a disinterested party--
        (i) Who is under contract with a parent training and information 
    center or community parent resource center in the State established 
    under section 682 or 683 of the Act, or an appropriate alternative 
    dispute resolution entity; and
        (ii) Who would explain the benefits of the mediation process, and 
    encourage the parents to use the process.
        (2) A public agency may not deny or delay a parent's right to a due 
    process hearing under Sec. 300.507 if the parent fails to participate 
    in the meeting described in paragraph (d)(1) of this section.
    
    (Authority: 20 U.S.C. 1415(e))
    
        Note 1: With respect to paragraph (b)(2) of this section, the 
    House Committee Report on Pub. L. 105-17 includes the following 
    statement:
        * * * the bill provides that the State shall maintain a list of 
    individuals who are qualified mediators. The Committee intends that 
    whenever such a mediator is not selected on a random basis from that 
    list, both the parents and the agency are involved in selecting the 
    mediator, and are in agreement with the individual who is selected. 
    (H. Rep. No. 105-95, p. 106 (1997))
    
        Note 2: With regard to the provision in paragraph (b)(6) that 
    mediation discussions must be confidential and may not be used in 
    any subsequent due process hearings or civil proceedings, the House 
    Committee Report on Pub. L. 105-17 notes that ``nothing in this bill 
    shall supersede any parental access rights under the Family 
    Educational Rights and Privacy Act of 1974 or foreclose access to 
    information otherwise available to the parties.'' (H. Rep. No. 105-
    95, p. 107 (1997)). The Report also includes an example of a 
    confidentiality pledge, which makes clear that the intent of this 
    provision is to protect discussions that occur in the mediation 
    process from use in subsequent due process hearings and civil 
    proceedings under the Act, and not to exempt from discovery, because 
    it was disclosed during mediation, information that otherwise would 
    be subject to discovery.
    
    
    Sec. 300.507  Impartial due process hearing; parent notice; disclosure.
    
        (a) General. (1) A parent or a public agency may initiate a hearing 
    on any of the matters described in Sec. 300.503(a)(1) and (2) (relating 
    to the identification, evaluation or educational placement of a child 
    with a disability, or the provision of FAPE to the child).
    
    [[Page 55100]]
    
        (2) When a hearing is initiated under paragraph (a)(1) of this 
    section, the public agency shall inform the parents of the availability 
    of mediation described in Sec. 300.506.
        (3) The public agency shall inform the parent of any free or low-
    cost legal and other relevant services available in the area if--
        (i) The parent requests the information; or
        (ii) The parent or the agency initiates a hearing under this 
    section.
        (b) Agency responsible for conducting hearing. The hearing 
    described in paragraph (a) of this section must be conducted by the SEA 
    or the public agency directly responsible for the education of the 
    child, as determined under State statute, State regulation, or a 
    written policy of the SEA.
        (c) Parent notice to the public agency.
        (1) General. The public agency must have procedures that require 
    the parent of a child with a disability or the attorney representing 
    the child, to provide notice (which must remain confidential) to the 
    public agency in a request for a hearing under paragraph (a)(1) of this 
    section.
        (2) Content of parent notice. The notice required in paragraph 
    (c)(1) of this section must include--
        (i) The name of the child;
        (ii) The address of the residence of the child;
        (iii) The name of the school the child is attending;
        (iv) A description of the nature of the problem of the child 
    relating to the proposed initiation or change, including facts relating 
    to the problem; and
        (v) A proposed resolution of the problem to the extent known and 
    available to the parents at the time.
        (3) Model form to assist parents. Each SEA shall develop a model 
    form to assist parents in filing a request for due process that 
    includes the information required in paragraphs (c)(1) and (2) of this 
    section.
        (4) Right to due process hearing. A public agency may not deny or 
    delay a parent's right to a due process hearing for failure to provide 
    the notice required in paragraphs (c)(1) and (2) of this section.
    
    (Authority: 20 U.S.C. 1415(b)(5), (b)(6), (b)(7), (b)(8), (e)(1) and 
    (f)(1))
    
        Note 1: Part B of the Act and the regulations under Part B of 
    the Act do not provide any authority for a public agency to deny a 
    parent's request for an impartial due process hearing, even if the 
    agency believes that the parent's issues are not new. Thus, the 
    determination of whether or not a parent's request for a hearing is 
    based on new issues can only be made by an impartial hearing 
    officer.
    
        Note 2: The House Committee Report on Pub. L. 105-17 notes that 
    attorneys' fees to prevailing parents may be reduced if the attorney 
    representing the parents did not provide the public agency with 
    specific information about the child and the basis of the dispute 
    described in paragraphs (c)(1) and (2) of this section. With respect 
    to the intent of the new notice provision, the House report includes 
    the following statement:
        * * * The Committee believes that the addition of this provision 
    will facilitate an early opportunity for schools and parents to 
    develop a common frame of reference about problems and potential 
    problems that may remove the need to proceed to due process and 
    instead foster a partnership to resolve problems. (H. Rep. 105-95, 
    p. 105 (1997))
    
    
    Sec. 300.508  Impartial hearing officer.
    
        (a) A hearing may not be conducted--
        (1) By a person who is an employee of the State agency or the LEA 
    that is involved in the education or care of the child; or
        (2) By any person having a personal or professional interest that 
    would conflict with his or her objectivity in the hearing.
        (b) A person who otherwise qualifies to conduct a hearing under 
    paragraph (a) of this section is not an employee of the agency solely 
    because he or she is paid by the agency to serve as a hearing officer.
        (c) Each public agency shall keep a list of the persons who serve 
    as hearing officers. The list must include a statement of the 
    qualifications of each of those persons.
    
    (Authority: 20 U.S.C. 1415(f)(3))
    
    
    Sec. 300.509  Hearing rights.
    
        (a) General. Any party to a hearing conducted pursuant to 
    Secs. 300.507 or 300.520--300.528, or an appeal conducted pursuant to 
    Sec. 300.510, has the right to--
        (1) Be accompanied and advised by counsel and by individuals with 
    special knowledge or training with respect to the problems of children 
    with disabilities;
        (2) Present evidence and confront, cross-examine, and compel the 
    attendance of witnesses;
        (3) Prohibit the introduction of any evidence at the hearing that 
    has not been disclosed to that party at least 5 days before the 
    hearing;
        (4) Obtain a written, or, at the option of the parents, electronic, 
    verbatim record of the hearing; and
        (5) Obtain written, or, at the option of the parents, electronic 
    findings of fact and decisions.
        (b) Additional disclosure of information requirement. (1) At least 
    5 business days prior to a hearing conducted pursuant to 
    Sec. 300.507(a), each party shall disclose to all other parties all 
    evaluations completed by that date and recommendations based on the 
    offering party's evaluations that the party intends to use at the 
    hearing.
        (2) A hearing officer may bar any party that fails to comply with 
    paragraph (b)(1) of this section from introducing the relevant 
    evaluation or recommendation at the hearing without the consent of the 
    other party.
        (c) Parental rights at hearings. (1) Parents involved in hearings 
    must be given the right to--
        (i) Have the child who is the subject of the hearing present; and
        (ii) Open the hearing to the public.
        (2) The record of the hearing and the findings of fact and 
    decisions described in paragraphs (a)(4) and (a)(5) of this section 
    must be provided at no cost to parents.
        (d) Findings and decision to advisory panel and general public. The 
    public agency, after deleting any personally identifiable information, 
    shall--
        (1) Transmit the findings and decisions referred to in paragraph 
    (a)(5) of this section to the State advisory panel established under 
    Sec. 300.650; and
        (2) Make those findings and decisions available to the public.
    
    (Authority: 20 U.S.C. 1415(f)(2)and (h))
    
    
    Sec. 300.510  Finality of decision; appeal; impartial review.
    
        (a) Finality of decision. A decision made in a hearing conducted 
    pursuant to Secs. 300.507 or 300.520--300.528 is final, except that any 
    party involved in the hearing may appeal the decision under the 
    provisions of paragraph (b) of this section and Sec. 300.512.
    
    (Authority: 20 U.S.C. 1415(i)(1)(A))
    
        (b) Appeal of decisions; impartial review.
        (1) General. If the hearing required by Sec. 300.507 is conducted 
    by a public agency other than the SEA, any party aggrieved by the 
    findings and decision in the hearing may appeal to the SEA.
        (2) SEA responsibility for review. If there is an appeal, the SEA 
    shall conduct an impartial review of the hearing. The official 
    conducting the review shall--
        (i) Examine the entire hearing record;
        (ii) Ensure that the procedures at the hearing were consistent with 
    the requirements of due process;
        (iii) Seek additional evidence if necessary. If a hearing is held 
    to receive additional evidence, the rights in Sec. 300.508 apply;
        (iv) Afford the parties an opportunity for oral or written 
    argument, or both, at the discretion of the reviewing official;
        (v) Make an independent decision on completion of the review; and
    
    [[Page 55101]]
    
        (vi) Give a copy of written findings and the decision to the 
    parties.
        (c) Findings and decision to advisory panel and general public. The 
    SEA, after deleting any personally identifiable information, shall--
        (1) Transmit the findings and decisions referred to in paragraph 
    (b)(2)(vi) of this section to the State advisory panel established 
    under Sec. 300.650; and
        (2) Make those findings and decisions available to the public.
        (d) Finality of review decision. The decision made by the reviewing 
    official is final unless a party brings a civil action under 
    Sec. 300.511.
    
    (Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94--664, at p. 49 
    (1975))
    
        Note 1: The SEA may conduct its review either directly or 
    through another State agency acting on its behalf. However, the SEA 
    remains responsible for the final decision on review.
    
        Note 2: All parties have the right to continue to be represented 
    by counsel at the State administrative review level, whether or not 
    the reviewing official determines that a further hearing is 
    necessary. If the reviewing official decides to hold a hearing to 
    receive additional evidence, the other rights in Sec. 300.509 
    relating to hearings also apply.
    
    
    Sec. 300.511  Timelines and convenience of hearings and reviews.
    
        (a) The public agency shall ensure that not later than 45 days 
    after the receipt of a request for a hearing--
        (1) A final decision is reached in the hearing; and
        (2) A copy of the decision is mailed to each of the parties.
        (b) The SEA shall ensure that not later than 30 days after the 
    receipt of a request for a review--
        (1) A final decision is reached in the review; and
        (2) A copy of the decision is mailed to each of the parties.
        (c) A hearing or reviewing officer may grant specific extensions of 
    time beyond the periods set out in paragraphs (a) and (b) of this 
    section at the request of either party.
        (d) Each hearing and each review involving oral arguments must be 
    conducted at a time and place that is reasonably convenient to the 
    parents and child involved.
    
    (Authority: 20 U.S.C. 1415)
    
    
    Sec. 300.512  Civil action.
    
        (a) General. Any party aggrieved by the findings and decision made 
    under Secs. 300.507 or 300.520-300.528 who does not have the right to 
    an appeal under Sec. 300.510(b)(2), and any party aggrieved by the 
    findings and decision under Sec. 300.510(e), has the right to bring a 
    civil action with respect to the complaint presented pursuant to 
    Sec. 300.507. The action may be brought in any State court of competent 
    jurisdiction or in a district court of the United States without regard 
    to the amount in controversy.
        (b) Additional requirements. In any action brought under paragraph 
    (a) of this section, the court--
        (1) Shall receive the records of the administrative proceedings;
        (2) Shall hear additional evidence at the request of a party; and
        (3) Basing its decision on the preponderance of the evidence, shall 
    grant the relief that the court determines to be appropriate.
        (c) Jurisdiction of district courts. The district courts of the 
    United States have jurisdiction of actions brought under section 615 of 
    the Act without regard to the amount in controversy.
        (d) Rule of construction. Nothing in this part restricts or limits 
    the rights, procedures, and remedies available under the Constitution, 
    the Americans with Disabilities Act of 1990, title V of the 
    Rehabilitation Act of 1973, or other Federal laws protecting the rights 
    of children with disabilities, except that before the filing of a civil 
    action under these laws seeking relief that is also available under 
    section 615 of the Act, the procedures under Secs. 300.507 and 300.510 
    must be exhausted to the same extent as would be required had the 
    action been brought under section 615 of the Act.
    
    (Authority: 20 U.S.C. 1415 (i)(2), (i)(3)(A), and 1415(l))
    
    
    Sec. 300.513  Attorneys' fees.
    
        (a) In any action or proceeding brought under section 615 of the 
    Act, the court, in its discretion, may award reasonable attorneys' fees 
    as part of the costs to the parents of a child with a disability who is 
    the prevailing party.
        (b) Funds under Part B of the Act may not be used to pay attorney's 
    fees.
    
    (Authority: 20 U.S.C. 1415(i)(3)(B))
    
        Note: There is nothing in this part that prohibits a State from 
    enacting a law that permits hearing officers to award attorneys' 
    fees to parents who are prevailing parties under Part B of the Act.
    
    
    Sec. 300.514  Child's status during proceedings.
    
        (a) Except as provided in Sec. 300.526, during the pendency of any 
    administrative or judicial proceeding regarding a complaint, unless the 
    State or local agency and the parents of the child agree otherwise, the 
    child involved in the complaint must remain in his or her current 
    educational placement.
        (b) If the complaint involves an application for initial admission 
    to public school, the child, with the consent of the parents, must be 
    placed in the public school until the completion of all the 
    proceedings.
        (c) If the decision of a hearing officer in a due process hearing 
    or a review official in an administrative appeal agrees with the 
    child's parents that a change of placement is appropriate, that 
    placement must be treated as an agreement between the State or local 
    agency and the parents for purposes of paragraph (a) of this section.
    
    (Authority: 20 U.S.C. 1415(j))
    
        Note: This section does not permit a child's placement to be 
    changed during a complaint proceeding, unless the parents and agency 
    agree otherwise. While the placement may not be changed, this does 
    not preclude the agency from using its normal procedures for dealing 
    with children who are endangering themselves or others.
    
    
    Sec. 300.515  Surrogate parents.
    
        (a) General. Each public agency shall ensure that the rights of a 
    child are protected if--
        (1) No parent (as defined in Sec. 300.19) can be identified;
        (2) The public agency, after reasonable efforts, cannot discover 
    the whereabouts of a parent; or
        (3) The child is a ward of the State under the laws of that State.
        (b) Duty of public agency. The duty of a public agency under 
    paragraph (a) of this section includes the assignment of an individual 
    to act as a surrogate for the parents. This must include a method--
        (1) For determining whether a child needs a surrogate parent; and
        (2) For assigning a surrogate parent to the child.
        (c) Criteria for selection of surrogates. (1) The public agency may 
    select a surrogate parent in any way permitted under State law.
        (2) Public agencies shall ensure that a person selected as a 
    surrogate--
        (i) Is not an employee of the SEA, the LEA, or any other agency 
    that is involved in the education or care of the child;
        (ii) Has no interest that conflicts with the interest of the child 
    he or she represents; and
        (iii) Has knowledge and skills that ensure adequate representation 
    of the child.
        (d) Non-employee requirement; compensation. (1) A person assigned 
    as a surrogate may not be an employee of a public agency that is 
    involved in the education or care of the child.
        (2) A person who otherwise qualifies to be a surrogate parent under
    
    [[Page 55102]]
    
    paragraphs (c) and (d)(1) of this section is not an employee of the 
    agency solely because he or she is paid by the agency to serve as a 
    surrogate parent.
        (e) Responsibilities. The surrogate parent may represent the child 
    in all matters relating to--
        (1) The identification, evaluation, and educational placement of 
    the child; and
        (2) The provision of FAPE to the child.
    
    (Authority: 20 U.S.C. 1415(b)(2))
    
    
    Sec. 300.516  [Reserved]
    
    
    Sec. 300.517  Transfer of parental rights at age of majority.
    
        (a) General. A State may provide that, when a child with a 
    disability reaches the age of majority under State law that applies to 
    all children (except for a child with a disability who has been 
    determined to be incompetent under State law)--
        (1)(i) The public agency shall provide any notice required by this 
    part to both the individual and the parents; and
        (ii) All other rights accorded to parents under Part B of the Act 
    transfer to the child; and
        (2) All rights accorded to parents under Part B of the Act transfer 
    to children who are incarcerated in an adult or juvenile, State, or 
    local correctional institution.
        (3) Whenever a State transfers rights under this part pursuant to 
    paragraph (a) (1) or (2), the agency shall notify the individual and 
    the parents of the transfer of rights.
        (b) Special rule. If, under State law, a child with a disability, 
    described in paragraph (a) of this section, is determined not to have 
    the ability to provide informed consent with respect to the educational 
    program of the student, the State shall establish procedures for 
    appointing the parent, or, if the parent is not available another 
    appropriate individual, to represent the educational interests of the 
    student throughout the student's eligibility under Part B of the Act.
    
    (Authority: 20 U.S.C. 1415(m))
    
    Discipline Procedures
    
    
    Sec. 300.520  Authority of school personnel.
    
        (a) School personnel may order--
        (1) The removal of a child with a disability from the child's 
    current educational placement to an appropriate interim alternative 
    educational setting, another setting, or suspension, including a 
    suspension without the provision of educational services, for not more 
    than 10 school days (to the extent the alternatives would be applied to 
    children without disabilities); and
        (2) A change in placement of a child with a disability to an 
    appropriate interim alternative educational setting for the same amount 
    of time that a child without a disability would be subject to 
    discipline, but for not more than 45 days, if--
        (i) The child carries a weapon to school or to a school function 
    under the jurisdiction of a State or a local educational agency; or
        (ii) The child knowingly possesses or uses illegal drugs or sells 
    or solicits the sale of a controlled substance while at school or a 
    school function under the jurisdiction of a State or local educational 
    agency.
        (b) Except as provided in paragraph (c) of this section, either 
    before or not later than 10 business days after taking the action 
    described in paragraph (a) of this section--
        (1) If the LEA did not conduct a functional behavioral assessment 
    and implement a behavioral intervention plan for the child before the 
    behavior that resulted in the suspension described in paragraph (a) of 
    this section, the agency shall convene an IEP meeting to develop an 
    assessment plan and appropriate behavioral interventions to address 
    that behavior; or
        (2) If the child already has a behavioral intervention plan, the 
    IEP team shall review the plan and modify it, as necessary, to address 
    the behavior.
        (c) If the child with a disability is removed from the child's 
    current educational placement for 10 school days or fewer under 
    paragraph (a)(1) of this section in a given school year, and no further 
    removal or disciplinary action is contemplated, the activities in 
    paragraph (b) of this section need not be conducted.
        (d) For purposes of this section, the following definitions apply:
        (1) Controlled substance means a drug or other substance identified 
    under schedules I, II, III, IV, or V in section 202(c) of the 
    Controlled Substances Act (21 U.S.C. 812(c)).
        (2) Illegal drug--
        (i) Means a controlled substance; but
        (ii) Does not include such a substance that is legally possessed or 
    used under the supervision or a licensed health-care professional or 
    that is legally possessed or used under any other authority under that 
    Act or under any other provision of Federal law.
        (3) Weapon has the meaning given the term ``dangerous weapon'' 
    under paragraph (2) of the first subsection (g) of section 930 of title 
    18, United States Code.
    
    (Authority: 20 U.S.C. 1415(k) (1), (10))
    
        Note 1: Removing a child with disabilities from the child's 
    current educational placement for not more than 10 school days does 
    not constitute a change of placement under the Part B regulation. A 
    series of removals from a child's current educational placement in a 
    school year each of which is less than 10 school days but cumulate 
    to more than 10 school days in a school year may constitute a change 
    in placement, if, in any given case, factors such as the length of 
    each removal, the total amount of time that the child is removed, 
    and the proximity of the removals to one another, lead to the 
    conclusion that the child has been excluded from the current 
    placement to such an extent that there has been a change of 
    placement.
    
        Note 2: Although paragraph (c) of this section provides that 
    public agencies need not conduct the review described in paragraph 
    (b) if a child is removed from the regular placement for 10 school 
    days or fewer and no further removal or disciplinary action is 
    contemplated, public agencies are strongly encouraged to review as 
    soon as possible the circumstances surrounding the behavior that led 
    to the child's removal and consider whether the child was being 
    provided services in accordance with the IEP, and whether the 
    behavior could be addressed through minor classroom or program 
    adjustments or whether the child's IEP team should be reconvened to 
    address possible changes in that document.
    
    
    Sec. 300.521  Authority of hearing officer.
    
        A hearing officer under section 615 of the Act may order a change 
    in the placement of a child with a disability to an appropriate interim 
    alternative educational setting for not more than 45 days if the 
    hearing officer, in an expedited due process hearing--
        (a) Determines that the public agency has demonstrated by 
    substantial evidence that maintaining the current placement of the 
    child is substantially likely to result in injury to the child or to 
    others;
        (b) Considers the appropriateness of the child's current placement;
        (c) Considers whether the public agency has made reasonable efforts 
    to minimize the risk of harm in the child's current placement, 
    including the use of supplementary aids and services; and
        (d) Determines that the interim alternative educational setting 
    meets the requirements of Sec. 300.522.
        (e) As used in this section, the term substantial evidence means 
    beyond a preponderance of the evidence.
    
    (Authority: 20 U.S.C. 1415(k) (2), (10))
    
    
    Sec. 300.522  Determination of setting.
    
        (a) General. The alternative educational setting referred to in 
    Secs. 300.520 and 300.521 must be determined by the IEP team.
        (b) Additional requirements. Any interim alternative educational 
    setting in which a child is placed under Sec. 300.520 or 300.521 must--
    
    [[Page 55103]]
    
        (1) Be selected so as to enable the child to continue to 
    participate in the general curriculum, although in another setting, and 
    to continue to receive those services and modifications, including 
    those described in the child's current IEP, that will enable the child 
    to meet the goals set out in that IEP; and
        (2) Include services and modifications designed to address the 
    behavior described in Sec. 300.520 or 300.521, or any other behavior 
    that results in the child being removed from the child's current 
    educational placement for more than 10 school days in a school year, so 
    that it does not recur.
    
    (Authority: 20 U.S.C. 1415(k)(3))
    
    
    Sec. 300.523  Manifestation determination review.
    
        (a) General. If an action is contemplated as described in 
    Sec. 300.520 or 300.521, or if an action involving a removal of a child 
    from the child's current educational placement for more than 10 school 
    days in a given school year is contemplated for a child with a 
    disability who has engaged in other behavior that violated any rule or 
    code of conduct of the LEA that applies to all children--
        (1) Not later than the date on which the decision to take that 
    action is made, the parents must be notified of that decision and of 
    all procedural safeguards accorded under this section; and
        (2) Immediately, if possible, but in no case later than 10 school 
    days after the date on which the decision to take that action is made, 
    a review must be conducted of the relationship between the child's 
    disability and the behavior subject to the disciplinary action.
        (b) Exception. If, under Sec. 300.520(a)(1), the child with 
    disabilities is removed from the child's current educational placement 
    for 10 school days or fewer in a given school year, and no further 
    disciplinary action is contemplated, the review in paragraph (a) of 
    this section need not be conducted.
        (c) Individuals to carry out review. A review described in 
    paragraph (a) of this section must be conducted by the IEP team and 
    other qualified personnel.
        (d) Conduct of review. In carrying out a review described in 
    paragraph (a) of this section, the IEP team may determine that the 
    behavior of the child was not a manifestation of the child's disability 
    only if the IEP team--
        (1) First considers, in terms of the behavior subject to 
    disciplinary action, all relevant information, including--
        (i) Evaluation and diagnostic results, including the results or 
    other relevant information supplied by the parents of the child;
        (ii) Observations of the child; and
        (iii) The child's IEP and placement; and
        (2) Then determines that--
        (i) In relationship to the behavior subject to disciplinary action, 
    the child's IEP and placement were appropriate and the special 
    education services, supplementary aids and services, and behavior 
    intervention strategies were provided consistent with the child's IEP 
    and placement;
        (ii) The child's disability did not impair the ability of the child 
    to understand the impact and consequences of the behavior subject to 
    disciplinary action; and
        (iii) The child's disability did not impair the ability of the 
    child to control the behavior subject to disciplinary action.
        (e) Decision. If the IEP team determines that any of the standards 
    in (d)(2) of this section were not met, the behavior must be considered 
    a manifestation of the child's disability.
        (f) Meeting. The review described in paragraph (a) of this section 
    may be conducted at the same IEP meeting that is convened under 
    Sec. 300.520(b).
    
    (Authority: 20 U.S.C. 1415(k)(4))
    
        Note 1: The House Committee Report on Pub. L. No 105-17 states 
    that the determination described in Sec. 300.523(c)(2):
        . . . .recognizes that where there is a relationship between a 
    child's behavior and a failure to provide or implement an IEP or 
    placement, the IEP team must conclude that the behavior was a 
    manifestation of the child's disability. Similarly, where the IEP 
    team determines that an appropriate placement and IEP were provided, 
    the IEP team must then determine that the remaining two standards 
    have been satisfied. This section is not intended to require an IEP 
    team to find that a child's behavior was a manifestation of a 
    child's disability based on a technical violation of the IEP or 
    placement requirements that are unrelated to the educational/
    behavior needs of the child. (House Rep. No. 105-95, pp. 110-111)
        Note 2: If the result of the manifestation determination is that 
    the behavior is a manifestation of the child's disability, the LEA 
    must take immediate steps to remedy any deficiencies found in the 
    child's IEP or placement, or their implementation. For a child who 
    has been placed in a 45-day placement under Sec. 300.520(a)(2) or 
    300.521 and for whom the child's behavior subject to discipline is a 
    manifestation of the child's disability, these remedies often should 
    enable the child to return to the child's current educational 
    placement before the expiration of the 45-day period.
    
    
    Sec. 300.524  Determination that behavior was not manifestation of 
    disability.
    
        (a) General. If the result of the review described in Sec. 300.523 
    is a determination, consistent with Sec. 300.523(e), that the behavior 
    of the child with a disability was not a manifestation of the child's 
    disability, the relevant disciplinary procedures applicable to children 
    without disabilities may be applied to the child in the same manner in 
    which they would be applied to children without disabilities, except as 
    provided in section 612(a)(1) of the Act.
        (b) Additional requirement. If the public agency initiates 
    disciplinary procedures applicable to all children, the agency shall 
    ensure that the special education and disciplinary records of the child 
    with a disability are transmitted for consideration by the person or 
    persons making the final determination regarding the disciplinary 
    action.
        (c) Child's status during due process proceedings. Section 300.514 
    applies if a parent requests a hearing to challenge a determination, 
    made through the review described in Sec. 300.523, that the behavior of 
    the child was not a manifestation of the child's disability.
    
    (Authority: 20 U.S.C. 1415(k)(5))
    
        Note: The provision in paragraph (c) of this section means that 
    during the pendency of any administrative or judicial proceeding to 
    challenge a determination that the child's behavior is not a 
    manifestation of the child's disability, the child remains in the 
    child's current educational placement or the child's placement under 
    Sec. 300.526, whichever applies.
    
    
    Sec. 300.525  Parent appeal.
    
        (a) General.
        (1) If the child's parent disagrees with a determination that the 
    child's behavior was not a manifestation of the child's disability or 
    with any decision regarding placement, the parent may request a 
    hearing.
        (2) The State or local educational agency shall arrange for an 
    expedited hearing in any case described in this section if requested by 
    a parent.
        (b) Review of decision.
        (1) In reviewing a decision with respect to the manifestation 
    determination, the hearing officer shall determine whether the public 
    agency has demonstrated that the child's behavior was not a 
    manifestation of the child's disability consistent with the 
    requirements of Sec. 300.523(e).
        (2) In reviewing a decision under Sec. 300.520(a)(2) to place the 
    child in an interim alternative educational setting, the hearing 
    officer shall apply the standards in Sec. 300.521.
    
    (Authority: 20 U.S.C. 1415(k)(6))
    
    
    Sec. 300.526  Placement during appeals.
    
        (a) General. If a parent requests a hearing regarding a 
    disciplinary action
    
    [[Page 55104]]
    
    described in Sec. 300.520(a)(2) or 300.521 to challenge the interim 
    alternative educational setting or the manifestation determination, the 
    child must remain in the interim alternative educational setting 
    pending the decision of the hearing officer or until the expiration of 
    the time period provided for in Sec. 300.520(a)(2) or 300.521, 
    whichever occurs first, unless the parent and the State or local 
    educational agency agree otherwise.
        (b) Current placement. If a child is placed in an interim 
    alternative educational setting pursuant to--Sec. 300.520(a)(2) or 
    300.521 and school personnel propose to change the child's placement 
    after expiration of the interim alternative placement, during the 
    pendency of any proceeding to challenge the proposed change in 
    placement the child must remain in the current placement (the child's 
    placement prior to the interim alternative educational setting), except 
    as provided in paragraph (c) of this section.
        (c) Expedited hearing.
        (1) If school personnel maintain that it is dangerous for the child 
    to be in the current placement (placement prior to removal to the 
    interim alternative education setting) during the pendency of the due 
    process proceedings, the LEA may request an expedited due process 
    hearing.
        (2) In determining whether the child may be placed in the 
    alternative educational setting or in another appropriate placement 
    ordered by the hearing officer, the hearing officer shall apply the 
    standards in Sec. 300.521.
        (3) A placement ordered pursuant to paragraph (c)(2) of this 
    section may not be longer than 45 days.
    
    (Authority: 20 U.S.C. 1415(k)(7))
    
        Note: An LEA may seek subsequent expedited hearings under 
    paragraph (c)(1) of this section if, at the expiration of the time 
    period of the placement ordered under paragraph (c) of this section, 
    the LEA maintains that the child is still dangerous and the issue 
    has not been resolved through due process.
    
    
    Sec. 300.527  Protections for children not yet eligible for special 
    education and related services.
    
        (a) General. A child who has not been determined to be eligible for 
    special education and related services under this part and who has 
    engaged in behavior that violated any rule or code of conduct of the 
    local educational agency, including any behavior described in 
    Secs. 300.520 or 300.521, may assert any of the protections provided 
    for in this part if the LEA had knowledge (as determined in accordance 
    with this paragraph) that the child was a child with a disability 
    before the behavior that precipitated the disciplinary action occurred.
        (b) Basis of knowledge. An LEA must be deemed to have knowledge 
    that a child is a child with a disability if--
        (1) The parent of the child has expressed concern in writing (or 
    orally if the parent is illiterate in English or has a disability that 
    prevents a written statement) to personnel of the appropriate 
    educational agency that the child is in need of special education and 
    related services;
        (2) The behavior or performance of the child demonstrates the need 
    for these services;
        (3) The parent of the child has requested an evaluation of the 
    child pursuant to Secs. 300.530-300.536; or
        (4) The teacher of the child, or other personnel of the local 
    educational agency, has expressed concern about the behavior or 
    performance of the child to the director of special education of the 
    agency or to other personnel of the agency.
        (c) Conditions that apply if no basis of knowledge.
        (1) General. If an LEA does not have knowledge that a child is a 
    child with a disability (in accordance with paragraph (b) of this 
    section) prior to taking disciplinary measures against the child, the 
    child may be subjected to the same disciplinary measures as measures 
    applied to children without disabilities who engaged in comparable 
    behaviors consistent with paragraph (c)(2) of this section.
        (2) Limitations.
        (i) If a request is made for an evaluation of a child during the 
    time period in which the child is subjected to disciplinary measures 
    under Sec. 300.520 or 300.521, the evaluation must be conducted in an 
    expedited manner.
        (ii) Until the evaluation is completed, the child remains in the 
    educational placement determined by school authorities.
        (iii) If the child is determined to be a child with a disability, 
    taking into consideration information from the evaluation conducted by 
    the agency and information provided by the parents, the agency shall 
    provide special education and related services in accordance with the 
    provisions of this part, including the requirements of Secs. 300.520-
    300.529 and section 612(a)(1)(A) of the Act.
    
    (Authority: 20 U.S.C. 1415(k)(8))
    
    
    Sec. 300.528  Expedited due process hearings.
    
        (a) Expedited due process hearings under Secs. 300.521-300.526 
    must--
        (1) Result in a decision within 10 business days of the request for 
    the hearing, unless the parents and school officials otherwise agree;
        (2) Meet the requirements of Sec. 300.508, except that a State may 
    provide that the time periods identified in Sec. 300.509(a)(3) and 
    Sec. 300.509(b) for purposes of expedited due process hearings under 
    Secs. 300.521-300.526 are not less than two business days; and
        (3) Be conducted by a due process hearing officer who satisfies the 
    requirements of Sec. 300.508.
        (b) A State may establish different procedural rules for expedited 
    hearings under Secs. 300.521-300.526 than it has established for due 
    process hearings under Sec. 300.507.
        (c) The decisions on expedited due process hearings are appealable 
    under a State's normal due process appeal procedures.
    
    (Authority: 20 U.S.C. 1415(k)(2), (6), (7))
    
    
    Sec. 300.529  Referral to and action by law enforcement and judicial 
    authorities.
    
        (a) Nothing in this part prohibits an agency from reporting a crime 
    committed by a child with a disability to appropriate authorities or to 
    prevent State law enforcement and judicial authorities from exercising 
    their responsibilities with regard to the application of Federal and 
    State law to crimes committed by a child with a disability.
        (b) An agency reporting a crime committed by a child with a 
    disability shall ensure that copies of the special education and 
    disciplinary records of the child are transmitted for consideration by 
    the appropriate authorities to whom it reports the crime.
    
    (Authority: 20 U.S.C. 1415(k)(9))
    
    Procedures for Evaluation and Determination of Eligibility
    
    
    Sec. 300.530  General.
    
        Each SEA shall ensure that each public agency establishes and 
    implements procedures that meet the requirements of Secs. 300.530-
    300.536.
    
    (Authority: 20 U.S.C. 1414(b)(3); 1412(a)(7))
    
    
    Sec. 300.531  Initial evaluation.
    
        Each public agency shall conduct a full and individual initial 
    evaluation, in accordance with Secs. 300.532 and 300.533, before the 
    initial provision of special education and related services to a child 
    with a disability under Part B of the Act.
    
    (Authority: 20 U.S.C. 1414(a)(1))
    
    
    Sec. 300.532  Evaluation procedures.
    
        Each public agency shall ensure, at a minimum, that--
    
    [[Page 55105]]
    
        (a) Tests and other evaluation materials used to assess a child 
    under Part B of the Act--
        (1) Are selected and administered so as not to be discriminatory on 
    a racial or cultural basis; and
        (2) Are provided and administered in the child's native language or 
    other mode of communication, unless it is clearly not feasible to do 
    so;
        (b) A variety of assessment tools and strategies are used to gather 
    relevant functional and developmental information about the child, 
    including information provided by the parent, that may assist in 
    determining--
        (1) Whether the child is a child with a disability under 
    Sec. 300.7; and
        (2) The content of the child's IEP, including information related 
    to enabling the child--
        (i) To be involved in and progress in the general curriculum; or
        (ii) For a preschool child, to participate in appropriate 
    activities.
        (c) Any standardized tests that are given to a child--
        (i) Have been validated for the specific purpose for which they are 
    used; and
        (ii) Are administered by trained and knowledgeable personnel in 
    accordance with any instructions provided by the producer of the tests;
        (d) Tests and other evaluation materials include those tailored to 
    assess specific areas of educational need and not merely those that are 
    designed to provide a single general intelligence quotient;
        (e) Tests are selected and administered so as best to ensure that 
    if a test is administered to a child with impaired sensory, manual, or 
    speaking skills, the test results accurately reflect the child's 
    aptitude or achievement level or whatever other factors the test 
    purports to measure, rather than reflecting the child's impaired 
    sensory, manual, or speaking skills (unless those skills are the 
    factors that the test purports to measure);
        (f) No single procedure is used as the sole criterion for 
    determining whether a child is a child with a disability and for 
    determining an appropriate educational program for the child;
        (g) The child is assessed in all areas related to the suspected 
    disability, including, if appropriate, health, vision, hearing, social 
    and emotional status, general intelligence, academic performance, 
    communicative status, and motor abilities;
        (h) The public agency uses technically sound instruments that may 
    assess the relative contribution of cognitive and behavioral factors, 
    in addition to physical or developmental factors; and
        (i) The public agency uses assessment tools and strategies that 
    provide relevant information that directly assists persons in 
    determining the educational needs of the child.
    
    (Authority: 20 U.S.C. 1414 (a)(6)(B), (b) (2) and (3))
    
        Note 1: Under Title VI of the Civil Rights Act of 1964, in order 
    to properly evaluate a child who may be limited English proficient, 
    the public agency must first determine the child's proficiency in 
    English and the child's native language. Under Title VI, an accurate 
    assessment of the child's language proficiency must include 
    objective assessment of reading, writing, speaking, and 
    understanding. Under this section and Sec. 300.534(b), information 
    about the child's language proficiency must be considered in 
    determining how to conduct the evaluation of the child to prevent 
    misclassification. Under both Title VI and Part B of the Act, the 
    public agency has a responsibility to ensure that children with 
    limited English proficiency are not evaluated on the basis of 
    criteria that essentially measure English language skills.
    
        Note 2: In some situations, there may be no one on the staff of 
    a public agency who is able to administer a test or other evaluation 
    in a child's native language, as required under paragraph (a)(2) of 
    this section, but an appropriate individual is available in the 
    surrounding area. Ways that a public agency can identify an 
    individual in the surrounding area who is able to administer a test 
    or other evaluation in the child's native language include 
    contacting neighboring school districts, local universities, and 
    professional organizations. For LEP students, in situations where it 
    is clearly not feasible to provide and administer tests in the 
    child's native language or mode of communication, the public agency 
    still needs to obtain and consider accurate and reliable information 
    that will enable the agency to make an informed decision as to 
    whether the child has a disability and the effects of the disability 
    on the child's educational needs.
    
        Note 3: If an assessment is not conducted under standard 
    conditions, information about the extent to which the assessment 
    varied from standard conditions, such as the qualifications of the 
    person administering the test or the method of test administration, 
    needs to be included in the evaluation report. This information is 
    needed so that the team of qualified professionals can evaluate the 
    effects of these variances on the validity and reliability of the 
    information reported and to determine whether additional assessments 
    are needed.
    
    
    Sec. 300.533  Determination of needed evaluation data.
    
        (a) Review of existing evaluation data. As part of an initial 
    evaluation (if appropriate) and as part of any reevaluation under Part 
    B of the Act, a team that includes the individuals required by 
    Sec. 300.344, and other qualified professionals, as appropriate, 
    shall--
        (1) Review existing evaluation data on the child, including--
        (i) Evaluations and information provided by the parents of the 
    child;
        (ii) Current classroom-based assessments and observations; and
        (iii) Observations by teachers and related services providers; and
        (2) On the basis of that review, and input from the child's 
    parents, identify what additional data, if any, are needed to 
    determine--
        (i) Whether the child has a particular category of disability, as 
    described in Sec. 300.7, or, in case of a reevaluation of a child, 
    whether the child continues to have such a disability;
        (ii) The present levels of performance and educational needs of the 
    child;
        (iii) Whether the child needs special education and related 
    services, or in the case of a reevaluation of a child, whether the 
    child continues to need special education and related services; and
        (iv) Whether any additions or modifications to the special 
    education and related services are needed to enable the child to meet 
    the measurable annual goals set out in the IEP of the child and to 
    participate, as appropriate, in the general curriculum.
        (b) Need for additional data. The public agency shall administer 
    tests and other evaluation materials as may be needed to produce the 
    data identified under paragraph (a) of this section.
        (c) Requirements if additional data are not needed. (1) If the 
    determination under paragraph (a) of this section is that no additional 
    data are needed to determine whether the child continues to be a child 
    with a disability, the public agency shall notify the child's parents--
        (i) Of that determination and the reasons for it; and
        (ii) Of the right of the parents to request an assessment to 
    determine whether the child continues to be a child with a disability.
        (2) The public agency is not required to conduct the assessment 
    described in paragraph (c)(1)(ii) of this section unless requested to 
    do so by the child's parents.
    
    (Authority: 20 U.S.C. 1414(c)(1), (2) and (4))
    
        Note: The requirement in paragraph (a) of this section and 
    Sec. 300.534(a)(1) that review of evaluation data and eligibility 
    decisions be made by groups that include ``qualified 
    professionals,'' is intended to ensure that the teams making these 
    determinations include individuals with the knowledge and skills 
    necessary to interpret the evaluation data and make an informed 
    determination as to whether the child is a child with a disability 
    under Sec. 300.7, and to determine whether the child needs special 
    education and related services. The composition of the team will
    
    [[Page 55106]]
    
    vary depending upon the nature of the child's suspected disability 
    and other relevant factors. For example, if a student is suspected 
    of having a learning disability, a professional whose sole expertise 
    is visual impairments would be an inappropriate choice. If a student 
    is limited English proficient, it will be important to include a 
    person on the team of qualified professionals who is knowledgeable 
    about the identification, assessment, and education of limited 
    English proficient students.
    
    
    Sec. 300.534  Determination of eligibility
    
        (a) Upon completing the administration of tests and other 
    evaluation materials--
        (1) A team of qualified professionals and the parent of the child 
    must determine whether the child is a child with a disability, as 
    defined in Sec. 300.7; and
        (2) The public agency must provide a copy of the evaluation report 
    and the documentation of determination of eligibility to the parent.
        (b) A child may not be determined to be a child with a disability 
    if the determinant factor for that determination is--
        (1) Lack of instruction in reading or math; or
        (2) Limited English proficiency.
        (c) A public agency must evaluate a child with a disability in 
    accordance with Secs. 300.532 and 300.533 before determining that the 
    child is no longer a child with a disability.
    
    (Authority: 20 U.S.C. 1414(b)(4) and (5), (c)(5))
    
    
    Sec. 300.535  Procedures for determining eligibility and placement.
    
        (a) In interpreting evaluation data for the purpose of determining 
    if a child is a child with a disability under Sec. 300.7, and the 
    educational needs of the child, each public agency shall--
        (1) Draw upon information from a variety of sources, including 
    aptitude and achievement tests, teacher recommendations, physical 
    condition, social or cultural background, and adaptive behavior; and
        (2) Ensure that information obtained from all of these sources is 
    documented and carefully considered.
        (b) If a determination is made that a child has a disability and 
    needs special education and related services, an IEP must be developed 
    for the child in accordance with Secs. 300.340-300.350.
    
    (Authority: 20 U.S.C. 1412(a)(6), 1414(b)(4))
    
        Note: Paragraph (a)(1) includes a list of examples of sources 
    that may be used by a public agency in determining whether a child 
    is a child with a disability, as defined in Sec. 300.7. The agency 
    would not have to use all the sources in every instance. The point 
    of the requirement is to ensure that more than one source is used in 
    interpreting evaluation data and in making these determinations. For 
    example, while all of the named sources would have to be used for a 
    child whose suspected disability is mental retardation, they would 
    not be necessary for certain other children with disabilities, such 
    as a child who has a severe articulation impairment as his primary 
    disability. For such a child, the speech-language pathologist, in 
    complying with the multiple source requirement, might use (1) a 
    standardized test of articulation, and (2) observation of the 
    child's articulation behavior in conversational speech.
    
    
    Sec. 300.536  Reevaluation.
    
        Each public agency shall ensure--
        (a) That the IEP of each child with a disability is reviewed in 
    accordance with Secs. 300.340-300.350; and
        (b) That a reevaluation of each child, in accordance with 
    Secs. 300.530(b), 300.532, and 300.533, is conducted if conditions 
    warrant a reevaluation, or if the child's parent or teacher requests a 
    reevaluation, but at least once every three years.
    
    (Authority: 20 U.S.C. 1414(a)(2))
    
    Additional Procedures for Evaluating Children With Specific Learning 
    Disabilities
    
    
    Sec. 300.540  Additional team members.
    
        The determination of whether a child suspected of having a specific 
    learning disability is a child with a disability as defined in 
    Sec. 300.7, must be made by the child's parents and a team of qualified 
    professionals which must include--
        (a)(1) The child's regular teacher; or
        (2) If the child does not have a regular teacher, a regular 
    classroom teacher qualified to teach a child of his or her age; or
        (3) For a child of less than school age, an individual qualified by 
    the SEA to teach a child of his or her age; and
        (b) At least one person qualified to conduct individual diagnostic 
    examinations of children, such as a school psychologist, speech-
    language pathologist, or remedial reading teacher.
    
    (Authority: 20 U.S.C. 1411 note)
    
    
    Sec. 300.541  Criteria for determining the existence of a specific 
    learning disability.
    
        (a) A team may determine that a child has a specific learning 
    disability if--
        (1) The child does not achieve commensurate with his or her age and 
    ability levels in one or more of the areas listed in paragraph (a)(2) 
    of this section, if provided with learning experiences appropriate for 
    the child's age and ability levels; and
        (2) The team finds that a child has a severe discrepancy between 
    achievement and intellectual ability in one or more of the following 
    areas:
        (i) Oral expression.
        (ii) Listening comprehension.
        (iii) Written expression.
        (iv) Basic reading skill.
        (v) Reading comprehension.
        (vi) Mathematics calculation.
        (vii) Mathematics reasoning.
        (b) The team may not identify a child as having a specific learning 
    disability if the severe discrepancy between ability and achievement is 
    primarily the result of--
        (1) A visual, hearing, or motor impairment;
        (2) Mental retardation;
        (3) Emotional disturbance; or
        (4) Environmental, cultural or economic disadvantage.
    
    (Authority: 20 U.S.C. 1411 note)
    
    
    Sec. 300.542  Observation.
    
        (a) At least one team member other than the child's regular teacher 
    shall observe the child's academic performance in the regular classroom 
    setting.
        (b) In the case of a child of less than school age or out of 
    school, a team member shall observe the child in an environment 
    appropriate for a child of that age.
    
    (Authority: 20 U.S.C. 1411 note)
    
    
    Sec. 300.543  Written report.
    
        (a) For a child suspected of having a specific learning disability, 
    the documentation of the team's determination of eligibility, as 
    required by Sec. 300.534(a)(2), must include a statement of--
        (1) Whether the child has a specific learning disability;
        (2) The basis for making the determination;
        (3) The relevant behavior noted during the observation of the 
    child;
        (4) The relationship of that behavior to the child's academic 
    functioning;
        (5) The educationally relevant medical findings, if any;
        (6) Whether there is a severe discrepancy between achievement and 
    ability that is not correctable without special education and related 
    services; and
        (7) The determination of the team concerning the effects of 
    environmental, cultural, or economic disadvantage.
        (b) Each team member shall certify in writing whether the report 
    reflects his or her conclusion. If it does not reflect his or her 
    conclusion, the team member must submit a separate statement presenting 
    his or her conclusions.
    
    (Authority: 20 U.S.C. 1411 note)
    
    Least Restrictive Environment
    
    
    Sec. 300.550  General.
    
        (a) A State shall demonstrate to the satisfaction of the Secretary 
    that the
    
    [[Page 55107]]
    
    State has in effect policies and procedures to ensure that it meets the 
    requirements of Secs. 300.550-300.556.
        (b) Each public agency shall ensure--
        (1) That to the maximum extent appropriate, children with 
    disabilities, including children in public or private institutions or 
    other care facilities, are educated with children who are nondisabled; 
    and
        (2) That special classes, separate schooling or other removal of 
    children with disabilities from the regular educational environment 
    occurs only if the nature or severity of the disability is such that 
    education in regular classes with the use of supplementary aids and 
    services cannot be achieved satisfactorily.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
    
    Sec. 300.551  Continuum of alternative placements.
    
        (a) Each public agency shall ensure that a continuum of alternative 
    placements is available to meet the needs of children with disabilities 
    for special education and related services.
        (b) The continuum required in paragraph (a) of this section must--
        (1) Include the alternative placements listed in the definition of 
    special education under Sec. 300.17 (instruction in regular classes, 
    special classes, special schools, home instruction, and instruction in 
    hospitals and institutions); and
        (2) Make provision for supplementary services (such as resource 
    room or itinerant instruction) to be provided in conjunction with 
    regular class placement.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
        Note: Home instruction is usually appropriate for only a limited 
    number of children, such as children who are medically fragile and 
    are not able to participate in a school setting with other children.
    
    
    Sec. 300.552  Placements.
    
        In determining the educational placement of a child with a 
    disability, each public agency shall ensure that--
        (a) The placement decision--
        (1) Is made by a group of persons, including the parents, and other 
    persons knowledgeable about the child, the meaning of the evaluation 
    data, and the placement options; and
        (2) Is made in conformity with the LRE provisions of this subpart, 
    including Secs. 300.550-300.554;
        (b) The child's placement--
        (1) Is determined at least annually;
        (2) Is based on the child's IEP; and
        (3) Is as close as possible to the child's home;
        (c) Unless the IEP of a child with a disability requires some other 
    arrangement, the child is educated in the school that he or she would 
    attend if nondisabled; and
        (d) In selecting the LRE, consideration is given to any potential 
    harmful effect on the child or on the quality of services that he or 
    she needs.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
        Note 1: With respect to paragraph (a)(1) of this section, 
    nothing in this part would prohibit a public agency from allowing 
    the group of persons that makes the placement decision also to serve 
    as the child's IEP team, so long as all individuals described in 
    Sec. 300.344 are included.
    
        Note 2: Section 300.552 includes some of the main factors that 
    must be considered in determining the extent to which a child with a 
    disability can be educated with children who are not disabled. The 
    overriding rule in this section is that placement decisions must be 
    made on an individual basis. The section also requires each agency 
    to have various alternative placements available in order to ensure 
    that each child with a disability receives an education that is 
    appropriate to his or her individual needs.
        The requirements of Sec. 300.552, as well as the other 
    requirements of Secs. 300.550-300.556, apply to all preschool 
    children with disabilities who are entitled to receive FAPE. Public 
    agencies that provide preschool programs for nondisabled preschool 
    children must ensure that the requirements of Sec. 300.552(c) are 
    met. Public agencies that do not operate programs for nondisabled 
    preschool children are not required to initiate those programs 
    solely to satisfy the requirements regarding placement in the LRE 
    embodied in Secs. 300.550-300.556. For these public agencies, some 
    alternative methods for meeting the requirements of Secs. 300.550-
    300.556 include--
        (1) Providing opportunities for the participation (even part-
    time) of preschool children with disabilities in other preschool 
    programs operated by public agencies (such as Head Start);
        (2) Placing children with disabilities in private school 
    programs for nondisabled preschool children or private school 
    preschool programs that integrate children with disabilities and 
    nondisabled children; and
        (3) Locating classes for preschool children with disabilities in 
    regular elementary schools.
        In each case the public agency must ensure that each child's 
    placement is in the LRE in which the unique needs of that child can 
    be met, based upon the child's IEP, and meets all of the other 
    requirements of Secs. 300.340-300.351 and Secs. 300.550-300.556.
        The analysis of the regulations for Section 504 of the 
    Rehabilitation Act of 1973 (34 CFR part 104--Appendix, Paragraph 24) 
    includes several points regarding educational placements of children 
    with disabilities that are pertinent to this section:
        1. With respect to determining proper placements, the analysis 
    states: ``* * * it should be stressed that, where a handicapped 
    child is so disruptive in a regular classroom that the education of 
    other students is significantly impaired, the needs of the 
    handicapped child cannot be met in that environment. Therefore 
    regular placement would not be appropriate to his or her needs * * 
    *.''
        2. With respect to placing a child with a disability in an 
    alternate setting, the analysis states that among the factors to be 
    considered in placing a child is the need to place the child as 
    close to home as possible. Recipients are required to take this 
    factor into account in making placement decisions. The parents' 
    right to challenge the placement of their child extends not only to 
    placement in special classes or separate schools, but also to 
    placement in a distant school, particularly in a residential 
    program. An equally appropriate education program may exist closer 
    to home, and this issue may be raised by the parent under the due 
    process provisions of this subpart.
    
        Note 3: If IEP teams appropriately consider positive behavioral 
    interventions and supplementary aids and services and if necessary 
    include those services in IEPs, many children who otherwise would be 
    disruptive will be able to participate in regular education 
    classrooms.
    
    
    Sec. 300.553  Nonacademic settings.
    
        In providing or arranging for the provision of nonacademic and 
    extracurricular services and activities, including meals, recess 
    periods, and the services and activities set forth in Sec. 300.306, 
    each public agency shall ensure that each child with a disability 
    participates with nondisabled children in those services and activities 
    to the maximum extent appropriate to the needs of that child.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
        Note: Section 300.553 is taken from a requirement in the 
    regulations for Section 504 of the Rehabilitation Act of 1973. With 
    respect to this requirement, the analysis of the Section 504 
    regulations includes the following statement: ``[This paragraph] 
    specifies that handicapped children must also be provided 
    nonacademic services in as integrated a setting as possible. This 
    requirement is especially important for children whose educational 
    needs necessitate their being solely with other handicapped children 
    during most of each day. To the maximum extent appropriate, children 
    in residential settings are also to be provided opportunities for 
    participation with other children.'' (34 CFR part 104--Appendix, 
    Paragraph 24.)
    
    
    Sec. 300.554  Children in public or private institutions.
    
        Each SEA shall make arrangements with public and private 
    institutions (such as a memorandum of agreement or special 
    implementation procedures) as may be necessary to ensure that 
    Sec. 300.550 is effectively implemented.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
        Note: The requirement to educate children with disabilities with 
    nondisabled children also applies to children in public and private 
    institutions or other care facilities. Each SEA
    
    [[Page 55108]]
    
    must ensure that each applicable agency and institution in the State 
    implements this requirement. Regardless of other reasons for 
    institutional placement, no child in an institution who is capable 
    of education in a regular public school setting may be denied access 
    to an education in that setting.
    
    
    Sec. 300.555  Technical assistance and training activities.
    
        Each SEA shall carry out activities to ensure that teachers and 
    administrators in all public agencies--
        (a) Are fully informed about their responsibilities for 
    implementing Sec. 300.550; and
        (b) Are provided with technical assistance and training necessary 
    to assist them in this effort.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
    
    Sec. 300.556  Monitoring activities.
    
        (a) The SEA shall carry out activities to ensure that Sec. 300.550 
    is implemented by each public agency.
        (b) If there is evidence that a public agency makes placements that 
    are inconsistent with Sec. 300.550, the SEA shall--
        (1) Review the public agency's justification for its actions; and
        (2) Assist in planning and implementing any necessary corrective 
    action.
    
    (Authority: 20 U.S.C. 1412(a)(5))
    
    Confidentiality of Information
    
    
    Sec. 300.560  Definitions.
    
        As used in Secs. 300.560-300.577--
        Destruction means physical destruction or removal of personal 
    identifiers from information so that the information is no longer 
    personally identifiable.
        Education records means the type of records covered under the 
    definition of ``education records'' in 34 CFR part 99 (the regulations 
    implementing the Family Educational Rights and Privacy Act of 1974).
        Participating agency means any agency or institution that collects, 
    maintains, or uses personally identifiable information, or from which 
    information is obtained, under Part B of the Act.
    
    (Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))
    
    
    Sec. 300.561  Notice to parents.
    
        (a) The SEA shall give notice that is adequate to fully inform 
    parents about the requirements of Sec. 300.127, including--
        (1) A description of the extent that the notice is given in the 
    native languages of the various population groups in the State;
        (2) A description of the children on whom personally identifiable 
    information is maintained, the types of information sought, the methods 
    the State intends to use in gathering the information (including the 
    sources from whom information is gathered), and the uses to be made of 
    the information;
        (3) A summary of the policies and procedures that participating 
    agencies must follow regarding storage, disclosure to third parties, 
    retention, and destruction of personally identifiable information; and
        (4) A description of all of the rights of parents and children 
    regarding this information, including the rights under the Family 
    Educational Rights and Privacy Act of 1974 and implementing regulations 
    in 34 CFR part 99.
        (b) Before any major identification, location, or evaluation 
    activity, the notice must be published or announced in newspapers or 
    other media, or both, with circulation adequate to notify parents 
    throughout the State of the activity.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.562  Access rights.
    
        (a) Each participating agency shall permit parents to inspect and 
    review any education records relating to their children that are 
    collected, maintained, or used by the agency under this part. The 
    agency shall comply with a request without unnecessary delay and before 
    any meeting regarding an IEP or any hearing relating to the 
    identification, evaluation, or educational placement of the child, or 
    the provision of FAPE to the child, and in no case more than 45 days 
    after the request has been made.
        (b) The right to inspect and review education records under this 
    section includes--
        (1) The right to a response from the participating agency to 
    reasonable requests for explanations and interpretations of the 
    records;
        (2) The right to request that the agency provide copies of the 
    records containing the information if failure to provide those copies 
    would effectively prevent the parent from exercising the right to 
    inspect and review the records; and
        (3) The right to have a representative of the parent inspect and 
    review the records.
        (c) An agency may presume that the parent has authority to inspect 
    and review records relating to his or her child unless the agency has 
    been advised that the parent does not have the authority under 
    applicable State law governing such matters as guardianship, 
    separation, and divorce.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.563  Record of access.
    
        Each participating agency shall keep a record of parties obtaining 
    access to education records collected, maintained, or used under Part B 
    of the Act (except access by parents and authorized employees of the 
    participating agency), including the name of the party, the date access 
    was given, and the purpose for which the party is authorized to use the 
    records.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.564  Records on more than one child.
    
        If any education record includes information on more than one 
    child, the parents of those children have the right to inspect and 
    review only the information relating to their child or to be informed 
    of that specific information.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.565  List of types and locations of information.
    
        Each participating agency shall provide parents on request a list 
    of the types and locations of education records collected, maintained, 
    or used by the agency.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.566  Fees.
    
        (a) Each participating agency may charge a fee for copies of 
    records that are made for parents under this part if the fee does not 
    effectively prevent the parents from exercising their right to inspect 
    and review those records.
        (b) A participating agency may not charge a fee to search for or to 
    retrieve information under this part.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.567  Amendment of records at parent's request.
    
        (a) A parent who believes that information in the education records 
    collected, maintained, or used under this part is inaccurate or 
    misleading or violates the privacy or other rights of the child may 
    request the participating agency that maintains the information to 
    amend the information.
        (b) The agency shall decide whether to amend the information in 
    accordance with the request within a reasonable period of time of 
    receipt of the request.
        (c) If the agency decides to refuse to amend the information in 
    accordance with the request, it shall inform the parent of the refusal 
    and advise the parent of the right to a hearing under Sec. 300.568.
    
    (Authority: 20 U.S.C. 1412(a)(8); 1417(c))
    
    
    Sec. 300.568  Opportunity for a hearing.
    
        The agency shall, on request, provide an opportunity for a hearing 
    to
    
    [[Page 55109]]
    
    challenge information in education records to ensure that it is not 
    inaccurate, misleading, or otherwise in violation of the privacy or 
    other rights of the child.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.569  Result of hearing.
    
        (a) If, as a result of the hearing, the agency decides that the 
    information is inaccurate, misleading or otherwise in violation of the 
    privacy or other rights of the child, it shall amend the information 
    accordingly and so inform the parent in writing.
        (b) If, as a result of the hearing, the agency decides that the 
    information is not inaccurate, misleading, or otherwise in violation of 
    the privacy or other rights of the child, it shall inform the parent of 
    the right to place in the records it maintains on the child a statement 
    commenting on the information or setting forth any reasons for 
    disagreeing with the decision of the agency.
        (c) Any explanation placed in the records of the child under this 
    section must--
        (1) Be maintained by the agency as part of the records of the child 
    as long as the record or contested portion is maintained by the agency; 
    and
        (2) If the records of the child or the contested portion is 
    disclosed by the agency to any party, the explanation must also be 
    disclosed to the party.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.570  Hearing procedures.
    
        A hearing held under Sec. 300.568 must be conducted according to 
    the procedures under 34 CFR 99.22.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.571  Consent.
    
        (a) Parental consent must be obtained before personally 
    identifiable information is--
        (1) Disclosed to anyone other than officials of participating 
    agencies collecting or using the information under this part, subject 
    to paragraph (b) of this section; or
        (2) Used for any purpose other than meeting a requirement of this 
    part.
        (b) An educational agency or institution subject to 34 CFR part 99 
    may not release information from education records to participating 
    agencies without parental consent unless authorized to do so under part 
    99.
        (c) The SEA shall provide policies and procedures that are used in 
    the event that a parent refuses to provide consent under this section.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.572  Safeguards.
    
        (a) Each participating agency shall protect the confidentiality of 
    personally identifiable information at collection, storage, disclosure, 
    and destruction stages.
        (b) One official at each participating agency shall assume 
    responsibility for ensuring the confidentiality of any personally 
    identifiable information.
        (c) All persons collecting or using personally identifiable 
    information must receive training or instruction regarding the State's 
    policies and procedures under Sec. 300.127 and 34 CFR part 99.
        (d) Each participating agency shall maintain, for public 
    inspection, a current listing of the names and positions of those 
    employees within the agency who may have access to personally 
    identifiable information.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.573  Destruction of information.
    
        (a) The public agency shall inform parents when personally 
    identifiable information collected, maintained, or used under this part 
    is no longer needed to provide educational services to the child.
        (b) The information must be destroyed at the request of the 
    parents. However, a permanent record of a student's name, address, and 
    phone number, his or her grades, attendance record, classes attended, 
    grade level completed, and year completed may be maintained without 
    time limitation.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
        Note: Under Sec. 300.573, the personally identifiable 
    information on a child with a disability may be retained permanently 
    unless the parents request that it be destroyed. Destruction of 
    records is the best protection against improper and unauthorized 
    disclosure. However, the records may be needed for other purposes. 
    In informing parents about their rights under this section, the 
    agency should remind them that the records may be needed by the 
    child or the parents for social security benefits or other purposes. 
    If the parents request that the information be destroyed, the agency 
    may retain the information in paragraph (b) of this section.
    
    
    Sec. 300.574  Children's rights.
    
        The SEA shall provide policies and procedures regarding the extent 
    to which children are afforded rights of privacy similar to those 
    afforded to parents, taking into consideration the age of the child and 
    type or severity of disability.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
        Note 1: Under the regulations for the Family Educational Rights 
    and Privacy Act of 1974 (34 CFR 99.5(a)), the rights of parents 
    regarding education records are transferred to the student at age 
    18.
        Note 2: If the rights accorded to parents under Part B of the 
    Act are transferred to a student who reaches the age of majority, 
    consistent with Sec. 300.517, the rights regarding educational 
    records in Secs. 300.562-300.573 must also be transferred to the 
    student. However, the public agency must provide any notice required 
    under section 615 of the Act to the student and the parents.
    
    
    Sec. 300.575  Enforcement.
    
        The SEA shall provide the policies and procedures, including 
    sanctions, that the State uses to ensure that its policies and 
    procedures are followed and that the requirements of the Act and the 
    regulations in this part are met.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    
    Sec. 300.576  Disciplinary information.
    
        (a) The State may require that a LEA include in the records of a 
    child with a disability a statement of any current or previous 
    disciplinary action that has been taken against the child and transmit 
    the statement to the same extent that the disciplinary information is 
    included in, and transmitted with, the student records of nondisabled 
    children.
        (b) The statement may include a description of any behavior engaged 
    in by the child that required disciplinary action, a description of the 
    disciplinary action taken, and any other information that is relevant 
    to the safety of the child and other individuals involved with the 
    child.
        (c) If the State adopts such a policy, and the child transfers from 
    one school to another, the transmission of any of the child's records 
    must include both the child's current individualized education program 
    and any statement of current or previous disciplinary action that has 
    been taken against the child.
    
    (Authority: 20 U.S.C. 1413(j))
    
    
    Sec. 300.577  Department use of personally identifiable information.
    
        If the Department or its authorized representatives collect any 
    personally identifiable information regarding children with 
    disabilities that is not subject to 5 U.S.C. 552a (the Privacy Act of 
    1974), the Secretary applies the requirements of 5 U.S.C. 552a (b)(1)-
    (2), (4)-(11); (c); (d); (e)(1), (2), (3)(A), (B), and (D), (5)-(10); 
    (h); (m); and (n); and the regulations implementing those provisions in 
    34 CFR part 5b.
    
    (Authority: 20 U.S.C. 1412(a)(8), 1417(c))
    
    Department Procedures
    
    
    Sec. 300.580  Determination by the Secretary that a State is eligible.
    
        If the Secretary determines that a State is eligible to receive a 
    grant under Part B of the Act, the Secretary notifies the State of that 
    determination.
    
    
    [[Page 55110]]
    
    
    (Authority: 20 U.S.C. (1412(d))
    
    
    Sec. 300.581  Notice and hearing before determining that a State is not 
    eligible.
    
        (a) General. (1) The Secretary does not make a final determination 
    that a State is not eligible to receive a grant under Part B of the Act 
    until providing the State--
        (i) With reasonable notice; and
        (ii) With an opportunity for a hearing.
        (2) In implementing paragraph (a)(1)(i) of this section, the 
    Secretary sends a written notice to the SEA by certified mail with 
    return receipt requested.
        (b) Content of notice. In the written notice described in paragraph 
    (a)(2) of this section, the Secretary--
        (1) States the basis on which the Secretary proposes to make a 
    final determination that the State is not eligible;
        (2) May describe possible options for resolving the issues;
        (3) Advises the SEA that it may request a hearing and that the 
    request for a hearing must be made not later than 30 calendar days 
    after it receives the notice of the proposed final determination that 
    the State is not eligible; and
        (4) Provides information about the procedures followed for a 
    hearing.
    
    (Authority: 20 U.S.C. (1412(d)(2))
    
    
    Sec. 300.582  Hearing official or panel.
    
        (a) If the SEA requests a hearing, the Secretary designates one or 
    more individuals, either from the Department or elsewhere, not 
    responsible for or connected with the administration of this program, 
    to conduct a hearing.
        (b) If more than one individual is designated, the Secretary 
    designates one of those individuals as the Chief Hearing Official of 
    the Hearing Panel. If one individual is designated, that individual is 
    the Hearing Official.
    
    (Authority: 20 U.S.C. (1412(d)(2))
    
    
    Sec. 300.583  Hearing procedures.
    
        (a) As used in Secs. 300.581-300.586 the term party or parties 
    means the following:
        (1) An SEA that requests a hearing regarding the proposed 
    disapproval of its State plan under this part.
        (2) The Department official who administers the program of 
    financial assistance under this part.
        (3) A person, group or agency with an interest in and having 
    relevant information about the case that has applied for and been 
    granted leave to intervene by the Hearing Official or Panel.
        (b) Within 15 days after receiving a request for a hearing, the 
    Secretary designates a Hearing Official or Panel and notifies the 
    parties.
        (c) The Hearing Official or Panel may regulate the course of 
    proceedings and the conduct of the parties during the proceedings. The 
    Hearing Official or Panel takes all steps necessary to conduct a fair 
    and impartial proceeding, to avoid delay, and to maintain order, 
    including the following:
        (1) The Hearing Official or Panel may hold conferences or other 
    types of appropriate proceedings to clarify, simplify, or define the 
    issues or to consider other matters that may aid in the disposition of 
    the case.
        (2) The Hearing Official or Panel may schedule a prehearing 
    conference of the Hearing Official or Panel and parties.
        (3) Any party may request the Hearing Official or Panel to schedule 
    a prehearing or other conference. The Hearing Official or Panel decides 
    whether a conference is necessary and notifies all parties.
        (4) At a prehearing or other conference, the Hearing Official or 
    Panel and the parties may consider subjects such as--
        (i) Narrowing and clarifying issues;
        (ii) Assisting the parties in reaching agreements and stipulations;
        (iii) Clarifying the positions of the parties;
        (iv) Determining whether an evidentiary hearing or oral argument 
    should be held; and
        (v) Setting dates for--
        (A) The exchange of written documents;
        (B) The receipt of comments from the parties on the need for oral 
    argument or evidentiary hearing;
        (C) Further proceedings before the Hearing Official or Panel 
    (including an evidentiary hearing or oral argument, if either is 
    scheduled);
        (D) Requesting the names of witnesses each party wishes to present 
    at an evidentiary hearing and estimation of time for each presentation; 
    or
        (E) Completion of the review and the initial decision of the 
    Hearing Official or Panel.
        (5) A prehearing or other conference held under paragraph (b)(4) of 
    this section may be conducted by telephone conference call.
        (6) At a prehearing or other conference, the parties shall be 
    prepared to discuss the subjects listed in paragraph (b)(4) of this 
    section.
        (7) Following a prehearing or other conference the Hearing Official 
    or Panel may issue a written statement describing the issues raised, 
    the action taken, and the stipulations and agreements reached by the 
    parties.
        (d) The Hearing Official or Panel may require parties to state 
    their positions and to provide all or part of the evidence in writing.
        (e) The Hearing Official or Panel may require parties to present 
    testimony through affidavits and to conduct cross-examination through 
    interrogatories.
        (f) The Hearing Official or Panel may direct the parties to 
    exchange relevant documents or information and lists of witnesses, and 
    to send copies to the Hearing Official or Panel.
        (g) The Hearing Official or Panel may receive, rule on, exclude, or 
    limit evidence at any stage of the proceedings.
        (h) The Hearing Official or Panel may rule on motions and other 
    issues at any stage of the proceedings.
        (i) The Hearing Official or Panel may examine witnesses.
        (j) The Hearing Official or Panel may set reasonable time limits 
    for submission of written documents.
        (k) The Hearing Official or Panel may refuse to consider documents 
    or other submissions if they are not submitted in a timely manner 
    unless good cause is shown.
        (l) The Hearing Official or Panel may interpret applicable statutes 
    and regulations but may not waive them or rule on their validity.
        (m)(1) The parties shall present their positions through briefs and 
    the submission of other documents and may request an oral argument or 
    evidentiary hearing. The Hearing Official or Panel shall determine 
    whether an oral argument or an evidentiary hearing is needed to clarify 
    the positions of the parties.
        (2) The Hearing Official or Panel gives each party an opportunity 
    to be represented by counsel.
        (n) If the Hearing Official or Panel determines that an evidentiary 
    hearing would materially assist the resolution of the matter, the 
    Hearing Official or Panel gives each party, in addition to the 
    opportunity to be represented by counsel--
        (1) An opportunity to present witnesses on the party's behalf; and
        (2) An opportunity to cross-examine witnesses either orally or with 
    written questions.
        (o) The Hearing Official or Panel accepts any evidence that it 
    finds is relevant and material to the proceedings and is not unduly 
    repetitious.
        (p)(1) The Hearing Official or Panel--
        (i) Arranges for the preparation of a transcript of each hearing;
        (ii) Retains the original transcript as part of the record of the 
    hearing; and
        (iii) Provides one copy of the transcript to each party.
        (2) Additional copies of the transcript are available on request 
    and with payment of the reproduction fee.
    
    [[Page 55111]]
    
        (q) Each party shall file with the Hearing Official or Panel all 
    written motions, briefs, and other documents and shall at the same time 
    provide a copy to the other parties to the proceedings.
    
    (Authority: 20 U.S.C. (1412(d)(2))
    
    
    Sec. 300.584  Initial decision; final decision.
    
        (a) The Hearing Official or Panel prepares an initial written 
    decision that addresses each of the points in the notice sent by the 
    Secretary to the SEA under Sec. 300.581.
        (b) The initial decision of a Panel is made by a majority of Panel 
    members.
        (c) The Hearing Official or Panel mails by certified mail with 
    return receipt requested a copy of the initial decision to each party 
    (or to the party's counsel) and to the Secretary, with a notice stating 
    that each party has an opportunity to submit written comments regarding 
    the decision to the Secretary.
        (d) Each party may file comments and recommendations on the initial 
    decision with the Hearing Official or Panel within 15 days of the date 
    the party receives the Panel's decision.
        (e) The Hearing Official or Panel sends a copy of a party's initial 
    comments and recommendations to the other parties by certified mail 
    with return receipt requested. Each party may file responsive comments 
    and recommendations with the Hearing Official or Panel within seven 
    days of the date the party receives the initial comments and 
    recommendations.
        (f) The Hearing Official or Panel forwards the parties' initial and 
    responsive comments on the initial decision to the Secretary who 
    reviews the initial decision and issues a final decision.
        (g) The initial decision of the Hearing Official or Panel becomes 
    the final decision of the Secretary unless, within 25 days after the 
    end of the time for receipt of written comments, the Secretary informs 
    the Hearing Official or Panel and the parties to a hearing in writing 
    that the decision is being further reviewed for possible modification.
        (h) The Secretary may reject or modify the initial decision of the 
    Hearing Official or Panel if the Secretary finds that it is clearly 
    erroneous.
        (i) The Secretary conducts the review based on the initial 
    decision, the written record, the Hearing Official's or Panel's 
    proceedings, and written comments. The Secretary may remand the matter 
    for further proceedings.
        (j) The Secretary issues the final decision within 30 days after 
    notifying the Hearing Official or Panel that the initial decision is 
    being further reviewed.
    
    (Authority: 20 U.S.C. (1412(d)(2))
    
    
    Sec. 300.585  Filing requirements.
    
        (a) Any written submission under Secs. 300.581-300.585 must be 
    filed by hand-delivery, by mail, or by facsimile transmission. The 
    Secretary discourages the use of facsimile transmission for documents 
    longer than five pages.
        (b) The filing date under paragraph (a) of this section is the date 
    the document is--
        (1) Hand-delivered;
        (2) Mailed; or
        (3) Sent by facsimile transmission.
        (c) A party filing by facsimile transmission is responsible for 
    confirming that a complete and legible copy of the document was 
    received by the Department.
        (d) If a document is filed by facsimile transmission, the 
    Secretary, the Hearing Official, or the Panel, as applicable, may 
    require the filing of a follow-up hard copy by hand-delivery or by mail 
    within a reasonable period of time.
        (e) If agreed upon by the parties, service of a document may be 
    made upon the other party by facsimile transmission.
    
    (Authority: 20 U.S.C. 1413(c))
    
    
    Sec. 300.586  Judicial review.
    
        If a State is dissatisfied with the Secretary's final action with 
    respect to the eligibility of the State under section 612 of the Act, 
    the State may, not later than 60 days after notice of that action, file 
    with the United States Court of Appeals for the circuit in which that 
    State is located a petition for review of that action. A copy of the 
    petition must be forthwith transmitted by the clerk of the court to the 
    Secretary. The Secretary then files in the court the record of the 
    proceedings upon which the Secretary's action was based, as provided in 
    section 2112 of title 28, United States Code.
    
    (Authority: 20 U.S.C. 1416(b))
    
    
    Sec. 300.587  Enforcement.
    
        (a) General. The Secretary initiates an action described in 
    paragraph (b) of this section if the Secretary finds--
        (1) That there has been a failure by the State to comply 
    substantially with any provision of Part B of the Act, this part, or 34 
    CFR part 301; or
        (2) That there is a failure to comply with any condition of an 
    LEA's or SEA's eligibility under Part B of the Act, this part or 34 CFR 
    part 301, including the terms of any agreement to achieve compliance 
    with Part B of the Act, this part, or Part 301 within the timelines 
    specified in the agreement.
        (b) Types of action. The Secretary, after notifying the SEA (and 
    any LEA or State agency affected by a failure described in paragraph 
    (a)(2) of this section)--
        (1) Withholds in whole or in part any further payments to the State 
    under Part B of the Act;
        (2) Refers the matter to the Department of Justice for enforcement; 
    or
        (3) Takes any other enforcement action authorized by law.
        (c) Nature of withholding. (1) If the Secretary determines that it 
    is appropriate to withhold further payments under paragraph (b)(1) of 
    this section, the Secretary may determine that the withholding will be 
    limited to programs or projects, or portions thereof, affected by the 
    failure, or that the SEA shall not make further payments under Part B 
    of the Act to specified LEA or State agencies affected by the failure.
        (2) Until the Secretary is satisfied that there is no longer any 
    failure to comply with the provisions of Part B of the Act, this part, 
    or 34 CFR part 301, as specified in paragraph (a) of this section, 
    payments to the State under Part B of the Act are withheld in whole or 
    in part, or payments by the SEA under Part B of the Act are limited to 
    local educational agencies and State agencies whose actions did not 
    cause or were not involved in the failure, as the case may be.
        (3) Any SEA, LEA, or other State agency that has received notice 
    under paragraph (a) of this section shall, by means of a public notice, 
    take such measures as may be necessary to bring the pendency of an 
    action pursuant to this subsection to the attention of the public 
    within the jurisdiction of that agency.
        (4) Before withholding under paragraph (b)(1) of this section, the 
    Secretary provides notice and a hearing pursuant to the procedures in 
    Secs. 300.581-300.586.
        (d) Referral for appropriate enforcement. (1) Before the Secretary 
    makes a referral under paragraph (b)(2) of this section for 
    enforcement, or takes any other enforcement action authorized by law 
    under paragraph (b)(3), the Secretary provides the State--
        (i) With reasonable notice; and
        (ii) With an opportunity for a hearing.
        (2) The hearing described in paragraph (d)(1)(ii) of this section 
    consists of an opportunity to meet with the Assistant Secretary for the 
    Office of Special Education and Rehabilitative Services to demonstrate 
    why the Department should not make such a referral for enforcement.
    
    [[Page 55112]]
    
        (e) Divided State agency responsibility. For purposes of this part, 
    if responsibility for ensuring that the requirements of this part are 
    met with respect to children with disabilities who are convicted as 
    adults under State law and incarcerated in adult prisons is assigned to 
    a public agency other than the SEA pursuant to Sec. 300.600(d), and if 
    the Secretary finds that the failure to comply substantially with the 
    provisions of Part B of the Act or this part are related to a failure 
    by the public agency, the Secretary takes one of the enforcement 
    actions described in paragraph (b) of this section to ensure compliance 
    with Part B of the Act and this part, except--
        (1) Any reduction or withholding of payments to the State under 
    paragraph (b)(1) of this section is proportionate to the total funds 
    allotted under section 611 of the Act to the State as the number of 
    eligible children with disabilities in adult prisons under the 
    supervision of the other public agency is proportionate to the number 
    of eligible individuals with disabilities in the State under the 
    supervision of the State educational agency; and
        (2) Any withholding of funds under paragraph (e)(1) of this section 
    is limited to the specific agency responsible for the failure to comply 
    with Part B of the Act or this part.
    
    (Authority: 20 U.S.C. 1416)
    
        Note: Other enforcement actions authorized by law include 
    issuance of a complaint to compel compliance through a cease and 
    desist order under 20 U.S.C. 1234e and entering into a compliance 
    agreement to bring a recipient into compliance under 20 U.S.C. 
    1234f.
    
    
    Secs. 300.588  [Reserved]
    
    
    Sec. 300.589  Waiver of requirement regarding supplementing and not 
    supplanting with Part B funds.
    
        (a) Except as provided under Secs. 300.232-300.235, funds paid to a 
    State under Part B of the Act must be used to supplement and increase 
    the level of Federal, State, and local funds (including funds that are 
    not under the direct control of SEAs or LEAs) expended for special 
    education and related services provided to children with disabilities 
    under Part B of the Act and in no case to supplant those Federal, 
    State, and local funds. A State may use funds it retains under 
    Sec. 300.602 without regard to the prohibition on supplanting other 
    funds (See Sec. 300.372).
        (b) If a State provides clear and convincing evidence that all 
    eligible children with disabilities throughout the State have FAPE 
    available to them, the Secretary may waive for a period of one year in 
    whole or in part the requirement under Sec. 300.153 (regarding State-
    level nonsupplanting) if the Secretary concurs with the evidence 
    provided by the State.
        (c) If a State wishes to request a waiver under this section, it 
    must submit to the Secretary a written request that includes--
        (1) An assurance that FAPE is currently available, and will remain 
    available throughout the period that a waiver would be in effect, to 
    all eligible children with disabilities throughout the State, 
    regardless of the public agency that is responsible for providing FAPE 
    to them. The assurance must be signed by an official who has the 
    authority to provide that assurance as it applies to all eligible 
    children with disabilities in the State;
        (2) All evidence that the State wishes the Secretary to consider in 
    determining whether all eligible children with disabilities have FAPE 
    available to them, setting forth in detail--
        (i) The basis on which the State has concluded that FAPE is 
    available to all eligible children in the State; and
        (ii) The procedures that the State will implement to ensure that 
    FAPE remains available to all eligible children in the State, which 
    must include--
        (A) The State's procedures under Sec. 300.125 for ensuring that all 
    eligible children are identified, located and evaluated;
        (B) The State's procedures for monitoring public agencies to ensure 
    that they comply with all requirements of this part;
        (C) The State's complaint procedures under Secs. 300.660-300.662; 
    and
        (D) The State's hearing procedures under Secs. 300.507-300.511 and 
    300.520-300.528;
        (3) A summary of all State and Federal monitoring reports, and 
    State complaint decisions (see Secs. 300.660-300.662) and hearing 
    decisions (see Secs. 300.507-300.511 and 300.520-300.528), issued 
    within three years prior to the date of the State's request for a 
    waiver under this section, that includes any finding that FAPE has not 
    been available to one or more eligible children, and evidence that FAPE 
    is now available to all children addressed in those reports or 
    decisions; and
        (4) Evidence that the State, in determining that FAPE is currently 
    available to all eligible children with disabilities in the State, has 
    consulted with the State advisory panel under Sec. 300.650, the State's 
    Parent Training and Information Center or Centers, the State's 
    Protection and Advocacy organization, and other organizations 
    representing the interests of children with disabilities and their 
    parents, and a summary of the input of these organizations.
        (d) If the Secretary determines that the request and supporting 
    evidence submitted by the State makes a prima facie showing that FAPE 
    is, and will remain, available to all eligible children with 
    disabilities in the State, the Secretary, after notice to the public 
    throughout the State, conducts a public hearing at which all interested 
    persons and organizations may present evidence regarding the following 
    issues:
        (1) Whether FAPE is currently available to all eligible children 
    with disabilities in the State.
        (2) Whether the State will be able to ensure that FAPE remains 
    available to all eligible children with disabilities in the State if 
    the Secretary provides the requested waiver.
        (e) Following the hearing, the Secretary, based on all submitted 
    evidence, will provide a waiver for a period of one year if the 
    Secretary finds that the State has provided clear and convincing 
    evidence that FAPE is currently available to all eligible children with 
    disabilities in the State, and the State will be able to ensure that 
    FAPE remains available to all eligible children with disabilities in 
    the State if the Secretary provides the requested waiver.
        (f) A State may receive a waiver of the requirement of section 
    612(a)(19)(A) and Sec. 300.154(a) if it satisfies the requirements of 
    paragraphs (b) through (e) of this section.
        (g)(1) The Secretary may grant subsequent waivers for a period of 
    one year each, if the Secretary determines that the State has provided 
    clear and convincing evidence that all eligible children with 
    disabilities throughout the State have, and will continue to have 
    throughout the one-year period of the waiver, FAPE available to them.
    
    (Authority: 20 U.S.C. 1412(a)(18)(C), (19)(C)(ii) and (E))
    
    Subpart F--State Administration; General
    
    
    Sec. 300.600  Responsibility for all educational programs.
    
        (a) The SEA is responsible for ensuring--
        (1) That the requirements of this part are carried out; and
        (2) That each educational program for children with disabilities 
    administered within the State, including each program administered by 
    any other State or local agency--
        (i) Is under the general supervision of the persons responsible for 
    educational programs for children with disabilities in the SEA; and
    
    [[Page 55113]]
    
        (ii) Meets the education standards of the SEA (including the 
    requirements of this part).
        (b) The State must comply with paragraph (a) of this section 
    through State statute, State regulation, signed agreement between 
    respective agency officials, or other documents.
        (c) Part B of the Act does not limit the responsibility of agencies 
    other than educational agencies for providing or paying some or all of 
    the costs of FAPE to children with disabilities in the State.
        (d) Notwithstanding paragraph (a) of this section, the Governor (or 
    another individual pursuant to State law), may assign to any public 
    agency in the State the responsibility of ensuring that the 
    requirements of Part B of the Act are met with respect to children with 
    disabilities who are convicted as adults under State law and 
    incarcerated in adult prisons.
    
    (Authority: 20 U.S.C. 1412(a)(11))
    
        Note: The requirement in Sec. 300.600(a) reflects the desire of 
    the Congress for a central point of responsibility and 
    accountability in the education of children with disabilities within 
    each State. With respect to SEA responsibility, the Senate Report on 
    Pub. L. 94-142 includes the following statements:
        This provision is included specifically to assure a single line 
    of responsibility with regard to the education of handicapped 
    children, and to assure that in the implementation of all provisions 
    of this Act and in carrying out the right to education for 
    handicapped children, the SEA shall be the responsible agency * * *.
        Without this requirement, there is an abdication of 
    responsibility for the education of handicapped children. In many 
    States, responsibility is divided, depending upon the age of the 
    handicapped child, sources of funding, and type of services 
    delivered. While the Committee understands that different agencies 
    may, in fact, deliver services, the responsibility must remain in a 
    central agency overseeing the education of handicapped children, so 
    that failure to deliver services or the violation of the rights of 
    handicapped children is squarely the responsibility of one agency. 
    (S. Rep. No. 94-168, p. 24 (1975))
    
        In meeting the requirements of this section, there are a number of 
    acceptable options that may be adopted, including the following:
        (1) Written agreements are developed between respective State 
    agencies concerning SEA standards and monitoring. These agreements are 
    binding on the local or regional counterparts of each State agency.
        (2) The Governor's office issues an administrative directive 
    establishing the SEA responsibility.
        (3) State law, regulation, or policy designates the SEA as 
    responsible for establishing standards for all educational programs for 
    individuals with disabilities, and includes responsibility for 
    monitoring.
        (4) State law mandates that the SEA is responsible for all 
    educational programs.
    
    
    Sec. 300.601  Relation of Part B to other Federal programs.
    
        Part B of the Act may not be construed to permit a State to reduce 
    medical and other assistance available to children with disabilities, 
    or to alter the eligibility of a child with a disability, under title V 
    (Maternal and Child Health) or title XIX (Medicaid) of the Social 
    Security Act, to receive services that are also part of FAPE.
    
    (Authority: 20 U.S.C. 1412(e))
    
    
    Sec. 300.602  State-level activities.
    
        (a) Each State may retain not more than the amount described in 
    paragraph (b) of this section for administration in accordance with 
    Secs. 300.620 and 300.621 and other State-level activities in 
    accordance with Sec. 300.370.
        (b) For each fiscal year, the Secretary determines and reports to 
    the SEA an amount that is 25 percent of the amount the State received 
    under this section for fiscal year 1997, cumulatively adjusted by the 
    Secretary for each succeeding fiscal year by the lesser of--
        (1) The percentage increase, if any, from the preceding fiscal year 
    in the State's allocation under section 611 of the Act; or
        (2) The rate of inflation, as measured by the percentage increase, 
    if any, from the preceding fiscal year in the Consumer Price Index For 
    All Urban Consumers, published by the Bureau of Labor Statistics of the 
    Department of Labor.
    
    (Authority: 20 U.S.C. 1411(f)(1)(A) and (B))
    
    Use of Funds
    
    
    Sec. 300.620  Use of funds for State administration.
    
        (a) For the purpose of administering Part B of the Act, including 
    section 619 of the Act (including the coordination of activities under 
    Part B of the Act with, and providing technical assistance to, other 
    programs that provide services to children with disabilities)--
        (1) Each State may use not more than twenty percent of the maximum 
    amount it may retain under Sec. 300.602(a) for any fiscal year or 
    $500,000 (adjusted by the cumulative rate of inflation since fiscal 
    year 1998, as measured by the percentage increase, if any, in the 
    Consumer Price Index For All Urban Consumers, published by the Bureau 
    of Labor Statistics of the Department of Labor), whichever is greater; 
    and
        (2) Each outlying area may use up to five percent of the amount it 
    receives under this section for any fiscal year or $35,000, whichever 
    is greater.
        (b) Funds described in paragraph (a) of this section may also be 
    used for the administration of Part C of the Act, if the SEA is the 
    lead agency for the State under that part.
    
    (Authority: 20 U.S.C. 1411(f)(2))
    
    
    Sec. 300.621  Allowable costs.
    
        (a) The SEA may use funds under Sec. 300.620 for--
        (1) Administration of State activities under Part B of the Act and 
    for planning at the State level, including planning, or assisting in 
    the planning, of programs or projects for the education of children 
    with disabilities;
        (2) Approval, supervision, monitoring, and evaluation of the 
    effectiveness of local programs and projects for the education of 
    children with disabilities;
        (3) Technical assistance to LEAs with respect to the requirements 
    of Part B of the Act;
        (4) Leadership services for the program supervision and management 
    of special education activities for children with disabilities; and
        (5) Other State leadership activities and consultative services.
        (b) The SEA shall use the remainder of its funds under Sec. 300.620 
    in accordance with Sec. 300.370.
    
    (Authority: 20 U.S.C. 1411(f)(2))
    
    
    Sec. 300.622  Subgrants to LEAs for capacity-building and improvement.
    
        In any fiscal year in which the percentage increase in the State's 
    allocation under 611 of the Act exceeds the rate of inflation (as 
    measured by the percentage increase, if any, from the preceding fiscal 
    year in the Consumer Price Index For All Urban Consumers, published by 
    the Bureau of Labor Statistics of the Department of Labor), each State 
    shall reserve, from its allocation under 611 of the Act, the amount 
    described in Sec. 300.623 to make subgrants to LEAs, unless that amount 
    is less than $100,000, to assist them in providing direct services and 
    in making systemic change to improve results for children with 
    disabilities through one or more of the following:
        (a) Direct services, including alternative programming for children 
    who have been expelled from school, and services for children in 
    correctional facilities, children enrolled in State-operated or State-
    supported schools, and children in charter schools.
        (b) Addressing needs or carrying out improvement strategies 
    identified in the
    
    [[Page 55114]]
    
    State's Improvement Plan under subpart 1 of Part D of the Act.
        (c) Adopting promising practices, materials, and technology, based 
    on knowledge derived from education research and other sources.
        (d) Establishing, expanding, or implementing interagency agreements 
    and arrangements between LEAs and other agencies or organizations 
    concerning the provision of services to children with disabilities and 
    their families.
        (e) Increasing cooperative problem-solving between parents and 
    school personnel and promoting the use of alternative dispute 
    resolution.
    
    (Authority: 20 U.S.C. 1411(f)(4)(A))
    
    
    Sec. 300.623  Amount required for subgrants to LEAs.
    
        For each fiscal year, the amount referred to in Sec. 300.622 is--
        (a) The maximum amount the State was allowed to retain under 
    Sec. 300.602(a) for the prior fiscal year, or, for fiscal year 1998, 25 
    percent of the State's allocation for fiscal year 1997 under section 
    611; multiplied by
        (b) The difference between the percentage increase in the State's 
    allocation under this section and the rate of inflation, as measured by 
    the percentage increase, if any, from the preceding fiscal year in the 
    Consumer Price Index For All Urban Consumers, published by the Bureau 
    of Labor Statistics of the Department of Labor.
    
    (Authority: 20 U.S.C. 1411(f)(4)(B))
    
        Note: The amount required for these subgrants will vary from 
    year to year and is determined by the size of the increase in the 
    State's allocation. Funds used for the required subgrants to LEAs in 
    one year become part of the required flow-through to LEAs under 
    Sec. 300.712 in the next year. In those years in which the State's 
    allocation does not increase over the prior year by at least the 
    rate of inflation, the required set-aside for these grants will be 
    zero. However, States may always use, at their discretion, funds 
    reserved for State-level activities under Sec. 300.602 for these 
    subgrants.
    
    
    Sec. 300.624  State discretion in awarding subgrants.
    
        The State may establish priorities in awarding subgrants under 
    Sec. 300.622 to LEAs competitively or on a targeted basis.
    
    (Authority: 20 U.S.C. 1411(f)(4)(B))
    
        Note: The purpose of these subgrants, as distinguished from the 
    formula subgrants to LEAs, is to provide funding that the SEA can 
    direct to address particular needs not readily addressed through 
    formula assistance to school districts such as funding for services 
    to children who have been suspended or expelled. The SEA can also 
    use these funds to promote innovation, capacity-building, and 
    systemic changes that are needed to improve educational results.
    
    State Advisory Panel
    
    
    Sec. 300.650  Establishment of advisory panels.
    
        (a) Each State shall establish and maintain, in accordance with 
    Secs. 300.650--300.653, a State advisory panel on the education of 
    children with disabilities.
        (b) The advisory panel must be appointed by the Governor or any 
    other official authorized under State law to make those appointments.
        (c) If a State has an existing advisory panel that can perform the 
    functions in Sec. 300.652, the State may modify the existing panel so 
    that it fulfills all of the requirements of Secs. 300.650--300.653, 
    instead of establishing a new advisory panel.
    
    (Authority: 20 U.S.C. 1412(a)(21)(A))
    
        Note: The advisory panel required by Secs. 300.650--300.653 must 
    advise the State regarding the education of all children with 
    disabilities in the State. This includes advising the State on the 
    education of eligible students with disabilities who have been 
    convicted as adults and incarcerated in adult prisons, even if, 
    consistent with Sec. 300.600(d), a State assigns general supervision 
    responsibility for those students to a public agency other than an 
    SEA.
    
    
    Sec. 300.651  Membership.
    
        (a) General. The membership of the State advisory panel must 
    consist of members appointed by the Governor, or any other official 
    authorized under State law to make these appointments, that is 
    representative of the State population and that is composed of 
    individuals involved in, or concerned with the education of children 
    with disabilities, including--
        (1) Parents of children with disabilities;
        (2) Individuals with disabilities;
        (3) Teachers;
        (4) Representatives of institutions of higher education that 
    prepare special education and related services personnel;
        (5) State and local education officials;
        (6) Administrators of programs for children with disabilities;
        (7) Representatives of other State agencies involved in the 
    financing or delivery of related services to children with 
    disabilities;
        (8) Representatives of private schools and public charter schools;
        (9) At least one representative of a vocational, community, or 
    business organization concerned with the provision of transition 
    services to children with disabilities; and
        (10) Representatives from the State juvenile and adult corrections 
    agencies.
        (b) Special rule. A majority of the members of the panel must be 
    individuals with disabilities or parents of children with disabilities.
    
    (Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
    
    
    Sec. 300.652  Advisory panel functions.
    
        The State advisory panel shall--
        (a) Advise the SEA of unmet needs within the State in the education 
    of children with disabilities;
        (b) Comment publicly on any rules or regulations proposed by the 
    State regarding the education of children with disabilities;
        (c) Advise the SEA in developing evaluations and reporting on data 
    to the Secretary under section 618 of the Act;
        (d) Advise the SEA in developing corrective action plans to address 
    findings identified in Federal monitoring reports under Part B of the 
    Act; and
        (e) Advise the SEA in developing and implementing policies relating 
    to the coordination of services for children with disabilities.
    
    (Authority: 20 U.S.C. 1412(a)(21)(D))
    
    
    Sec. 300.653  Advisory panel procedures.
    
        (a) The advisory panel shall meet as often as necessary to conduct 
    its business.
        (b) By July 1 of each year, the advisory panel shall submit an 
    annual report of panel activities and suggestions to the SEA. This 
    report must be made available to the public in a manner consistent with 
    other public reporting requirements of Part B of the Act.
        (c) Official minutes must be kept on all panel meetings and must be 
    made available to the public on request.
        (d) All advisory panel meetings and agenda items must be publicly 
    announced prior to the meeting, and meetings must be open to the 
    public.
        (e) Interpreters and other necessary services must be provided at 
    panel meetings for panel members or participants. The State may pay for 
    these services from funds under Sec. 300.620.
        (f) The advisory panel shall serve without compensation but the 
    State must reimburse the panel for reasonable and necessary expenses 
    for attending meetings and performing duties. The State may use funds 
    under Sec. 300.620 for this purpose.
    
    (Authority: 20 U.S.C. 1412(a)(21))
    
    State Complaint Procedures
    
    
    Sec. 300.660  Adoption of State complaint procedures.
    
        Each SEA shall adopt written procedures for--
    
    [[Page 55115]]
    
        (a) Resolving any complaint that meets the requirements of 
    Sec. 300.662 by--
        (1) Providing for the filing of a complaint with the SEA; and
        (2) At the SEA's discretion, providing for the filing of a 
    complaint with a public agency and the right to have the SEA review the 
    public agency's decision on the complaint; and
        (b) Widely disseminating to parents and other interested 
    individuals, including parent training centers, protection and advocacy 
    agencies, independent living centers, and other appropriate entities, 
    the State's procedures under Secs. 300.660--300.662.
    
    (Authority: 20 U.S.C. 2831(a))
    
        Note: In resolving a complaint alleging failure to provide 
    appropriate services, an SEA, pursuant to its general supervisory 
    authority under Part B of the Act, may award compensatory services 
    as a remedy for the denial of FAPE.
    
    
    Sec. 300.661  Minimum State complaint procedures.
    
        Each SEA shall include the following in its complaint procedures:
        (a) A time limit of 60 calendar days after a complaint is filed 
    under Sec. 300.660(a) to--
        (1) Carry out an independent on-site investigation, if the SEA 
    determines that such an investigation is necessary;
        (2) Give the complainant the opportunity to submit additional 
    information, either orally or in writing, about the allegations in the 
    complaint;
        (3) Review all relevant information and make an independent 
    determination as to whether the public agency is violating a 
    requirement of Part B of the Act or of this part; and
        (4) Issue a written decision to the complainant that addresses each 
    allegation in the complaint and contains--
        (i) Findings of fact and conclusions; and
        (ii) The reasons for the SEA's final decision.
        (b) An extension of the time limit under paragraph (a) of this 
    section only if exceptional circumstances exist with respect to a 
    particular complaint.
        (c) Procedures for effective implementation of the SEA's final 
    decision, if needed, including technical assistance activities, 
    negotiations, and corrective actions to achieve compliance.
    
    (Authority: 20 U.S.C. 2831(a))
    
        Note 1: If a written complaint is received that is also the 
    subject of a due process hearing under Sec. 300.507, or contains 
    multiple issues, of which one or more may be part of that hearing, 
    the State must set aside any part of the complaint that is being 
    addressed in the due process hearing, until the conclusion of the 
    hearing. However, any issue in the complaint that is not a part of 
    the due process action must be resolved within the 60 calendar-day 
    timeline using the complaint procedures described in this section.
    
        Note 2: If an issue is raised in a complaint filed under this 
    section that has previously been decided in a due process hearing 
    involving the same parties, then the hearing decision is binding, 
    and the SEA would inform the complainant to that effect. A complaint 
    alleging a public agency's failure to implement a due process 
    decision, however, would have to be resolved by the SEA.
    
    
    Sec. 300.662  Filing a complaint.
    
        (a) An organization or individual may file a signed written 
    complaint under the procedures described in Secs. 300.660-300.661.
        (b) The complaint must include--
        (1) A statement that a public agency has violated a requirement of 
    Part B of the Act or of this part; and
        (2) The facts on which the statement is based.
        (c) The complaint must allege a violation that occurred not more 
    than one year prior to the date that the complaint is received in 
    accordance with Sec. 300.660(a) unless a longer period is reasonable 
    because the violation is continuing, or the complainant is requesting 
    compensatory services for a violation that occurred not more than three 
    years prior to the date the complaint is received under 
    Sec. 300.660(a).
    
    (Authority: 20 U.S.C. 2831(a))
    
        Note: The SEA must resolve any complaint that meets the 
    requirements of this section, even if the complaint is filed by an 
    organization or individual from another State.
    
    Subpart G--Allocation of Funds; Reports Allocations
    
    
    Sec. 300.700  Special definition of the term ``State''.
    
        For the purposes of Secs. 300.701, 300.703-300.714, the term State 
    means each of the 50 States, the District of Columbia, and the 
    Commonwealth of Puerto Rico.
    
    (Authority: 20 U.S.C. 1411(h)(2))
    
    
    Sec. 300.701  Grants to States.
    
        (a) Purpose of grants. The Secretary makes grants to States and the 
    outlying areas and provides funds to the Secretary of the Interior, to 
    assist them to provide special education and related services to 
    children with disabilities in accordance with Part B of the Act.
        (b) Maximum amounts. The maximum amount of the grant a State may 
    receive under section 611 of the Act for any fiscal year is--
        (1) The number of children with disabilities in the State who are 
    receiving special education and related services--
        (i) Aged 3 through 5 if the State is eligible for a grant under 
    section 619 of the Act; and
        (ii) Aged 6 through 21; multiplied by--
        (2) Forty (40) percent of the average per-pupil expenditure in 
    public elementary and secondary schools in the United States.
    
    (Authority: 20 U.S.C. 1411(a))
    
    
    Sec. 300.702  Definition.
    
        For the purposes of this section the term average per-pupil 
    expenditure in public elementary and secondary schools in the United 
    States means--
        (a) Without regard to the source of funds--
        (1) The aggregate current expenditures, during the second fiscal 
    year preceding the fiscal year for which the determination is made (or, 
    if satisfactory data for that year are not available, during the most 
    recent preceding fiscal year for which satisfactory data are available) 
    of all LEAs in the 50 States and the District of Columbia); plus
        (2) Any direct expenditures by the State for the operation of those 
    agencies; divided by
        (b) The aggregate number of children in average daily attendance to 
    whom those agencies provided free public education during that 
    preceding year.
    
    (Authority: 20 U.S.C. 1411(h)(1))
    
    
    Sec. 300.703  Allocations to States.
    
        (a) General. After reserving funds for studies and evaluations 
    under section 674(e) of the Act, and for payments to the outlying areas 
    and the Secretary of the Interior under Secs. 300.717-300.722 and 
    300.715, the Secretary allocates the remaining amount among the States 
    in accordance with paragraph (b) of this section and Secs. 300.704-
    300.705 or 300.706-300.709.
        (b) Interim formula. Except as provided in Secs. 300.706-300.709, 
    the Secretary allocates the amount described in paragraph (a) of this 
    section among the States in accordance with section 611(a)(3), (4), (5) 
    and (b)(1), (2) and (3) of the Act, as in effect prior to June 4, 1997, 
    except that the determination of the number of children with 
    disabilities receiving special education and related services under 
    section 611(a)(3) of the Act (as then in effect) may be calculated as 
    of December 1, or, at the State's discretion, the last Friday in 
    October, of the fiscal year for which the funds were appropriated.
    
    (Authority: 20 U.S.C. 1411(d))
    
    [[Page 55116]]
    
    Secs. 300.704-300.705  [Reserved]
    
    
    Sec. 300.706  Permanent formula.
    
        (a) Establishment of base year. The Secretary allocates the amount 
    described in Sec. 300.703(a) among the States in accordance with 
    Secs. 300.706-300.709 for each fiscal year beginning with the first 
    fiscal year for which the amount appropriated under 611(j) of the Act 
    is more than $4,924,672,200.
        (b) Use of base year.
        (1) Definition. As used in this section, the term base year means 
    the fiscal year preceding the first fiscal year in which this section 
    applies.
        (2) Special rule for use of base year amount. If a State received 
    any funds under this section for the base year on the basis of children 
    aged 3 through 5, but does not make FAPE available to all children with 
    disabilities aged 3 through 5 in the State in any subsequent fiscal 
    year, the Secretary computes the State's base year amount, solely for 
    the purpose of calculating the State's allocation in that subsequent 
    year under Secs. 300.707-300.709, by subtracting the amount allocated 
    to the State for the base year on the basis of those children.
    
    (Authority: 20 U.S.C. 1411(e)(1) and (2))
    
    
    Sec. 300.707  Increase in funds.
    
        If the amount available for allocations to States under 
    Sec. 300.706 is equal to or greater than the amount allocated to the 
    States under this section for the preceding fiscal year, those 
    allocations are calculated as follows:
        (a) Except as provided in Sec. 300.708, the Secretary--
        (1) Allocates to each State the amount it received for the base 
    year;
        (2) Allocates 85 percent of any remaining funds to States on the 
    basis of their relative populations of children aged 3 through 21 who 
    are of the same age as children with disabilities for whom the State 
    ensures the availability of FAPE under Part B of the Act; and
        (3) Allocates 15 percent of those remaining funds to States on the 
    basis of their relative populations of children described in paragraph 
    (a)(2) of this section who are living in poverty.
        (b) For the purpose of making grants under this section, the 
    Secretary uses the most recent population data, including data on 
    children living in poverty, that are available and satisfactory to the 
    Secretary.
    
    (Authority: 20 U.S.C. 1411(e)(3))
    
    
    Sec. 300.708  Limitation.
    
        (a) Notwithstanding Sec. 300.707, allocations under this section 
    are subject to the following:
        (1) No State's allocation may be less than its allocation for the 
    preceding fiscal year.
        (2) No State's allocation may be less than the greatest of--
        (i) The sum of--
        (A) The amount it received for the base year; and
        (B) One-third of one percent of the amount by which the amount 
    appropriated under section 611(j) of the Act exceeds the amount 
    appropriated under section 611 of the Act for the base year;
        (ii) The sum of--
        (A) The amount it received for the preceding fiscal year; and
        (B) That amount multiplied by the percentage by which the increase 
    in the funds appropriated from the preceding fiscal year exceeds 1.5 
    percent; or
        (iii) The sum of--
        (A) The amount it received for the preceding fiscal year; and
        (B) That amount multiplied by 90 percent of the percentage increase 
    in the amount appropriated from the preceding fiscal year.
        (b) Notwithstanding paragraph (a)(2) of this section, no State's 
    allocation under Sec. 300.707 may exceed the sum of--
        (1) The amount it received for the preceding fiscal year; and
        (2) That amount multiplied by the sum of 1.5 percent and the 
    percentage increase in the amount appropriated.
        (c) If the amount available for allocations to States under 
    Sec. 300.307 and paragraphs (a) and (b) of this section is insufficient 
    to pay those allocations in full those allocations are ratably reduced, 
    subject to paragraph (a)(1) of this section.
    
    (Authority: 20 U.S.C. 1411(e)(3)(B) and (C))
    
    
    Sec. 300.709  Decrease in funds.
    
        If the amount available for allocations to States under 
    Sec. 300.706 is less than the amount allocated to the States under 
    section 611 of the Act for the preceding fiscal year, those allocations 
    are calculated as follows:
        (a) If the amount available for allocations is greater than the 
    amount allocated to the States for the base year, each State is 
    allocated the sum of--
        (1) The amount it received for the base year; and
        (2) An amount that bears the same relation to any remaining funds 
    as the increase the State received for the preceding fiscal year over 
    the base year bears to the total of those increases for all States.
        (b)(1) If the amount available for allocations is equal to or less 
    than the amount allocated to the States for the base year, each State 
    is allocated the amount it received for the base year.
        (2) If the amount available is insufficient to make the allocations 
    described in paragraph (b)(1) of this section, those allocations are 
    ratably reduced.
    
    (Authority: 20 U.S.C. 1411(e)(4))
    
    
    Sec. 300.710  Allocation for State in which by-pass is implemented for 
    private school children with disabilities.
    
        In determining the allocation under Secs. 300.700--300.709 of a 
    State in which the Secretary will implement a by-pass for private 
    school children with disabilities under Secs. 300.451--300.487, the 
    Secretary includes in the State's child count--
        (a) For the first year of a by-pass, the actual or estimated number 
    of private school children with disabilities (as defined in 
    Secs. 300.7(a) and 300.450) in the State, as of the preceding December 
    1; and
        (b) For succeeding years of a by-pass, the number of private school 
    children with disabilities who received special education and related 
    services under the by-pass in the preceding year.
    
    (Authority: 20 U.S.C. 1412(f)(2))
    
    
    Sec. 300.711  Subgrants to LEAs.
    
        Each State that receives a grant under section 611 of the Act for 
    any fiscal year shall distribute in accordance with Sec. 300.712 any 
    funds it does not retain under Sec. 300.602 and is not required to 
    distribute under Secs. 300.622 and 300.623 to LEAs in the State that 
    have established their eligibility under section 613 of the Act, and to 
    State agencies that received funds under section 614A(a) of the Act for 
    fiscal year 1997, as then in effect, and have established their 
    eligibility under section 613 of the Act, for use in accordance with 
    Part B of the Act.
    
    (Authority: 20 U.S.C. 1411(g)(1))
    
    
    Sec. 300.712  Allocations to LEAs.
    
        (a) Interim procedure. For each fiscal year for which funds are 
    allocated to States under Sec. 300.703(b) each State shall allocate 
    funds under Sec. 300.711 in accordance with section 611(d) of the Act, 
    as in effect prior to June 4, 1997.
        (b) Permanent procedure. For each fiscal year for which funds are 
    allocated to States under Secs. 300.706-300.709, each State shall 
    allocate funds under Sec. 300.711 as follows:
        (1) Base payments. The State first shall award each agency 
    described in Sec. 300.711 the amount that agency would have received 
    under this section for the base year, as defined in Sec. 300.706(b)(1), 
    if the State had distributed 75 percent of its grant for that year 
    under section Sec. 300.703(b).
    
    [[Page 55117]]
    
        (2) Allocation of remaining funds. The State then shall--
        (i) Allocate 85 percent of any remaining funds to those agencies on 
    the basis of the relative numbers of children enrolled in public and 
    private elementary and secondary schools within the agency's 
    jurisdiction; and
        (ii) Allocate 15 percent of those remaining funds to those agencies 
    in accordance with their relative numbers of children living in 
    poverty, as determined by the SEA.
    
    (Authority: 20 U.S.C. 1411(g)(2))
    
        Note: In distributing funds under paragraph (b)(2)(i) of this 
    section, States should use the best data that are available to them 
    on enrollment in public and private schools. If data on enrollment 
    in private schools are not available, States or LEAs are not 
    expected to initiate new data collections to obtain these data. 
    However, States are encouraged to try to obtain enrollment data from 
    private, nonprofit schools that want their students to participate 
    in the program.
        In distributing funds under paragraph (b)(2)(ii) of this 
    section, States have discretion in determining what data to use to 
    allocate funds among LEAs on the basis of children living in 
    poverty. States should use the best data available to them that 
    reflect the distribution of children living in poverty. Examples of 
    options include census poverty data, data on children in families 
    receiving assistance under the State program funded under Part A of 
    title IV of the Social Security Act, data on children participating 
    in the free or reduced-price meals program under the National School 
    Lunch Act, and allocations under title I of the Elementary and 
    Secondary Education Act.
    
    
    Sec. 300.713  Former Chapter 1 State agencies.
    
        (a) To the extent necessary, the State--
        (1) Shall use funds that are available under Sec. 300.602(a) to 
    ensure that each State agency that received fiscal year 1994 funds 
    under subpart 2 of Part D of chapter 1 of title I of the Elementary and 
    Secondary Education Act of 1965 (as in effect in fiscal year 1994) 
    receives, from the combination of funds under Sec. 300.602(a) and funds 
    provided under Sec. 300.711, an amount equal to--
        (i) The number of children with disabilities, aged 6 through 21, to 
    whom the agency was providing special education and related services on 
    December 1, or, at the State's discretion, the last Friday in October, 
    of the fiscal year for which the funds were appropriated, subject to 
    the limitation in paragraph (b) of this section; multiplied by
        (ii) The per-child amount provided under such subpart for fiscal 
    year 1994; and
        (2) May use those funds to ensure that each LEA that received 
    fiscal year 1994 funds under that subpart for children who had 
    transferred from a State-operated or State-supported school or program 
    assisted under that subpart receives, from the combination of funds 
    available under Sec. 300.602(a) and funds provided under Sec. 300.711, 
    an amount for each child, aged 3 through 21 to whom the agency was 
    providing special education and related services on December 1, or, at 
    the State's discretion, the last Friday in October, of the fiscal year 
    for which the funds were appropriated, equal to the per-child amount 
    the agency received under that subpart for fiscal year 1994.
        (b) The number of children counted under paragraph (a)(1)(i) of 
    this section may not exceed the number of children aged 3 through 21 
    for whom the agency received fiscal year 1994 funds under subpart 2 of 
    Part D of chapter 1 of title I of the Elementary and Secondary 
    Education Act of 1965 (as in effect in fiscal year 1994).
    
    (Authority: 20 U.S.C. 1411(g)(3))
    
    
    Sec. 300.714  Reallocation of LEA funds.
    
        If a SEA determines that an LEA is adequately providing FAPE to all 
    children with disabilities residing in the area served by that agency 
    with State and local funds, the SEA may reallocate any portion of the 
    funds under Part B of the Act that are not needed by that local agency 
    to provide FAPE to other LEAs in the State that are not adequately 
    providing special education and related services to all children with 
    disabilities residing in the areas they serve.
    
    (Authority: 20 U.S.C. 1411(g)(4))
    
    
    Sec. 300.715  Payments to the Secretary of the Interior for the 
    education of Indian children.
    
        (a) Reserved amounts for Secretary of Interior. From the amount 
    appropriated for any fiscal year under 611(j) of the Act, the Secretary 
    reserves 1.226 percent to provide assistance to the Secretary of the 
    Interior in accordance with this section.
        (b) Provision of amounts for assistance. The Secretary provides 
    amounts to the Secretary of the Interior to meet the need for 
    assistance for the education of children with disabilities on 
    reservations aged 5 to 21, inclusive, enrolled in elementary and 
    secondary schools for Indian children operated or funded by the 
    Secretary of the Interior. The amount of the payment for any fiscal 
    year is equal to 80 percent of the amount allotted under paragraph (a) 
    of this section for that fiscal year.
        (c) Calculation of number of children. In the case of Indian 
    students aged 3 to 5, inclusive, who are enrolled in programs 
    affiliated with the Bureau of Indian Affairs (BIA) schools and that are 
    required by the States in which these schools are located to attain or 
    maintain State accreditation, and which schools have this accreditation 
    prior to the date of enactment of the Individuals with Disabilities 
    Education Act Amendments of 1991, the school may count those children 
    for the purpose of distribution of the funds provided under this 
    section to the Secretary of the Interior.
        (d) Responsibility for meeting the requirements of Part B. The 
    Secretary of the Interior shall meet all of the requirements of Part B 
    of the Act for the children described in paragraph (b) of this section, 
    in accordance with Sec. 300.260.
    
    (Authority: 20 U.S.C. 1411(c); 1411(i)(1) (A) and (B))
    
    
    Sec. 300.716  Payments for education and services for Indian children 
    with disabilities aged 3 through 5.
    
        (a) General. With funds appropriated under 611(j) of the Act, the 
    Secretary makes payments to the Secretary of the Interior to be 
    distributed to tribes or tribal organizations (as defined under section 
    4 of the Indian Self-Determination and Education Assistance Act) or 
    consortia of those tribes or tribal organizations to provide for the 
    coordination of assistance for special education and related services 
    for children with disabilities aged 3 through 5 on reservations served 
    by elementary and secondary schools for Indian children operated or 
    funded by the Department of the Interior. The amount of the payments 
    under paragraph (b) of this section for any fiscal year is equal to 20 
    percent of the amount allotted under Sec. 300.715(a).
        (b) Distribution of funds. The Secretary of the Interior shall 
    distribute the total amount of the payment under paragraph (a) of this 
    section by allocating to each tribe or tribal organization an amount 
    based on the number of children with disabilities ages 3 through 5 
    residing on reservations as reported annually, divided by the total of 
    those children served by all tribes or tribal organizations.
        (c) Submission of information. To receive a payment under this 
    section, the tribe or tribal organization shall submit the figures to 
    the Secretary of the Interior as required to determine the amounts to 
    be allocated under paragraph (b) of this section. This information must 
    be compiled and submitted to the Secretary.
        (d) Use of funds. (1) The funds received by a tribe or tribal 
    organization must be used to assist in child find screening and other 
    procedures for the
    
    [[Page 55118]]
    
    early identification of children aged 3 through 5, parent training, and 
    the provision of direct services. These activities may be carried out 
    directly or through contracts or cooperative agreements with the BIA, 
    LEAs, and other public or private nonprofit organizations. The tribe or 
    tribal organization is encouraged to involve Indian parents in the 
    development and implementation of these activities.
        (2) The entities shall, as appropriate, make referrals to local, 
    State, or Federal entities for the provision of services or further 
    diagnosis.
        (e) Biennial report. To be eligible to receive a grant pursuant to 
    paragraph (a) of this section, the tribe or tribal organization shall 
    provide to the Secretary of the Interior a biennial report of 
    activities undertaken under this paragraph, including the number of 
    contracts and cooperative agreements entered into, the number of 
    children contacted and receiving services for each year, and the 
    estimated number of children needing services during the two years 
    following the one in which the report is made. The Secretary of the 
    Interior shall include a summary of this information on a biennial 
    basis in the report to the Secretary required under section 611(i). The 
    Secretary may require any additional information from the Secretary of 
    the Interior.
        (f) Prohibitions. None of the funds allocated under this section 
    may be used by the Secretary of the Interior for administrative 
    purposes, including child count and the provision of technical 
    assistance.
    
    (Authority: 20 U.S.C. 1411(i)(3))
    
    
    Sec. 300.717  Outlying areas and freely associated States.
    
        From the amount appropriated for any fiscal year under 611(j) of 
    the Act, the Secretary reserves not more than one percent, which must 
    be used--
        (a) To provide assistance to the outlying areas in accordance with 
    their respective populations of individuals aged 3 through 21; and
        (b) For fiscal years 1998 through 2001, to carry out the 
    competition described in Sec. 300.719, except that the amount reserved 
    to carry out that competition may not exceed the amount reserved for 
    fiscal year 1996 for the competition under Part B of the Act described 
    under the heading ``SPECIAL EDUCATION'' in Public Law 104-134.
    
    (Authority: 20 U.S.C. 1411(b)(1))
    
    
    Sec. 300.718  Outlying area--definition.
    
        As used in this part, the term outlying area means the United 
    States Virgin Islands, Guam, American Samoa, and the Commonwealth of 
    the Northern Mariana Islands.
    
    (Authority: 20 U.S.C. 1402(18))
    
    
    Sec. 300.719  Limitation for freely associated States.
    
        (a) Competitive grants. The Secretary uses funds described in 
    Sec. 300.717(b) to award grants, on a competitive basis, to Guam, 
    American Samoa, the Commonwealth of the Northern Mariana Islands, and 
    the freely associated States to carry out the purposes of this part.
        (b) Award basis. The Secretary awards grants under paragraph (a) of 
    this section on a competitive basis, pursuant to the recommendations of 
    the Pacific Region Educational Laboratory in Honolulu, Hawaii. Those 
    recommendations must be made by experts in the field of special 
    education and related services.
        (c) Assistance requirements. Any freely associated State that 
    wishes to receive funds under Part B of the Act shall include, in its 
    application for assistance--
        (1) Information demonstrating that it will meet all conditions that 
    apply to States under this part;
        (2) An assurance that, notwithstanding any other provision of this 
    part, it will use those funds only for the direct provision of special 
    education and related services to children with disabilities and to 
    enhance its capacity to make FAPE available to all children with 
    disabilities;
        (3) The identity of the source and amount of funds, in addition to 
    funds under Part B of the Act, that it will make available to ensure 
    that FAPE is available to all children with disabilities within its 
    jurisdiction; and
        (4) Such other information and assurances as the Secretary may 
    require.
        (d) Termination of eligibility. Notwithstanding any other provision 
    of law, the freely associated States may not receive any funds under 
    Part B of the Act for any program year that begins after September 30, 
    2001.
        (e) Administrative costs. The Secretary may provide not more than 
    five percent of the amount reserved for grants under this section to 
    pay the administrative costs of the Pacific Region Educational 
    Laboratory under paragraph (b) of this section.
        (f) Eligibility for award. An outlying area is not eligible for a 
    competitive award under Sec. 300.719 unless it receives assistance 
    under Sec. 300.717(a).
    
    (Authority: 20 U.S.C. 1411(b)(2) and (3))
    
    
    Sec. 300.720  Special rule.
    
        The provisions of Public Law 95-134, permitting the consolidation 
    of grants by the outlying areas, do not apply to funds provided to 
    those areas or to the freely associated States under Part B of the Act.
    
    (Authority: 20 U.S.C. 1411(b)(4))
    
    
    Sec. 300.721  [Reserved]
    
    
    Sec. 300.722  Definition.
    
        As used in this part, the term freely associated States means the 
    Republic of the Marshall Islands, the Federated States of Micronesia, 
    and the Republic of Palau.
    
    (Authority: 20 U.S.C. 1411(b)(6))
    
    Reports
    
    
    Sec. 300.750  Annual report of children served--report requirement.
    
        (a) The SEA shall report to the Secretary no later than February 1 
    of each year the number of children with disabilities aged 3 through 21 
    residing in the State who are receiving special education and related 
    services.
        (b) The SEA shall submit the report on forms provided by the 
    Secretary.
    
    (Authority: 20 U.S.C. 1411(d)(2); 1418(a))
    
        Note: It is very important to understand that this report and 
    the requirements that relate to it are solely for allocation 
    purposes. The population of children the State may count for 
    allocation purposes may differ from the population of children to 
    whom the State must make FAPE available. For example, while section 
    611(a)(5) of the Act prior to the Individuals with Disabilities 
    Education Act Amendments of 1997 limits the number of children who 
    may be counted for allocation purposes to 12 percent of the general 
    school population aged 3 through 17 (in States that serve all 
    children with disabilities aged 3 through 5) or 5 through 17 (in 
    States that do not serve all children with disabilities aged 3 
    through 5), a State might find that 13 percent (or some other 
    percentage) of its children have disabilities. In that case, the 
    State must make FAPE available to all of those children with 
    disabilities.
    
    
    Sec. 300.751  Annual report of children served--information required in 
    the report.
    
        (a) For any year before the total appropriation for section 611 of 
    the Act first exceeds $4,924,672,200, the SEA shall include in its 
    report a table that shows--
        (1) The number of children with disabilities receiving special 
    education and related services on December 1, or at the State's 
    discretion on the last Friday in October, of that school year;
        (2) The number of children with disabilities aged 3 through 5 who 
    are receiving FAPE;
        (3) The number of those children with disabilities aged 6 through 
    21 within each disability category, as defined in the definition of 
    ``children with disabilities'' in Sec. 300.7; and
    
    [[Page 55119]]
    
        (4) The number of those children with disabilities aged 3 through 
    21 for each year of age (3, 4, 5, etc.).
        (b) For the purpose of this part, a child's age is the child's 
    actual age on the date of the child count: December 1, or, at the 
    State's discretion, the last Friday in October.
        (c) The SEA may not report a child aged 6 through 21 under more 
    than one disability category.
        (d) If a child with a disability aged 6 through 21 has more than 
    one disability, the SEA shall report that child in accordance with the 
    following procedure:
        (1) A child with deaf-blindness must be reported under the category 
    ``deaf-blindness.''
        (2) A child who has more than one disability (other than deaf-
    blindness) must be reported under the category ``multiple 
    disabilities.''
    
    (Authority: 20 U.S.C. 1411(d)(2); 1418(a))
    
    
    Sec. 300.752  Annual report of children served--certification.
    
        The SEA shall include in its report a certification signed by an 
    authorized official of the agency that the information provided is an 
    accurate and unduplicated count of children with disabilities receiving 
    special education and related services on the dates in question.
    
    (Authority: 20 U.S.C. 1411(d)(2); 1417(b))
    
    
    Sec. 300.753  Annual report of children served--criteria for counting 
    children.
    
        (a) The SEA may include in its report children with disabilities 
    who are enrolled in a school or program that is operated or supported 
    by a public agency, and that either--
        (1) Provides them with both special education and related services; 
    or
        (2) Provides them only with special education if they do not need 
    related services to assist them in benefitting from that special 
    education.
        (b) The SEA may not include children with disabilities in its 
    report who--
        (1) Are not enrolled in a school or program operated or supported 
    by a public agency;
        (2) Are not provided special education that meets State standards;
        (3) Are not provided with a related service that they need to 
    assist them in benefitting from special education; or
        (4) Are receiving special education funded solely by the Federal 
    Government. However, the State may count children covered under 
    Sec. 300.184(c)(2).
    
    (Authority: 20 U.S.C. 1411(d)(2); 1417(b))
    
        Note 1: Under paragraph (a) of this section, the State may count 
    children with disabilities in a Head Start or other preschool 
    program operated or supported by a public agency if those children 
    are provided special education that meets State standards.
    
        Note 2: Both special education and related services must be at 
    no cost to parents.
    
        There may be some situations, however, where a child receives 
    special education from a public source at no cost, but whose parents 
    pay for the basic or regular education. This child may be counted. The 
    Department expects that there would only be limited situations in which 
    special education would be clearly separate from regular education--
    generally, if speech services are the only special education required 
    by the child. For example, the child's parents may have enrolled the 
    child in a regular program in a private school, but the child might be 
    receiving speech services in a program funded by the LEA. Allowing 
    these children to be counted will provide incentives (in addition to 
    complying with the legal requirement in section 612(a)(10)(A) of the 
    Act regarding private schools) to public agencies to provide services 
    to children enrolled by their parents in private schools, since funds 
    are generated in part on the basis of the number of children provided 
    special education and related services. Agencies should understand, 
    however, that if a public agency places or refers a child with a 
    disability to a public or private school for educational purposes, 
    special education includes the entire educational program provided to 
    the child. In that case, parents may not be charged for any part of the 
    child's education.
        A State may not count Indian children on or near reservations and 
    children on military facilities if it provides them no special 
    education. If an SEA or LEA is responsible for serving these children, 
    and does provide them special education and related services, they may 
    be counted.
    
    
    Sec. 300.754  Annual report of children served--other responsibilities 
    of the State education agency.
    
        In addition to meeting the other requirements of Secs. 300.750-
    300.753, the SEA shall--
        (a) Establish procedures to be used by LEAs and other educational 
    institutions in counting the number of children with disabilities 
    receiving special education and related services;
        (b) Set dates by which those agencies and institutions must report 
    to the SEA to ensure that the State complies with Sec. 300.750(a);
        (c) Obtain certification from each agency and institution that an 
    unduplicated and accurate count has been made;
        (d) Aggregate the data from the count obtained from each agency and 
    institution, and prepare the reports required under Secs. 300.750-
    300.753; and
        (e) Ensure that documentation is maintained that enables the State 
    and the Secretary to audit the accuracy of the count.
    
    (Authority: 20 U.S.C. 1411(d)(2); 1417(b))
    
        Note: States should note that the data required in the annual 
    report of children served are not to be transmitted to the Secretary 
    in personally identifiable form. States are encouraged to collect 
    these data in non-personally identifiable form.
    
    
    Sec. 300.755  Disproportionality.
    
        (a) General. Each State that receives assistance under Part B of 
    the Act, and the Secretary of the Interior, shall provide for the 
    collection and examination of data to determine if significant 
    disproportionality based on race is occurring in the State or in the 
    schools operated by the Secretary of the Interior with respect to--
        (1) The identification of children as children with disabilities, 
    including the identification of children as children with disabilities 
    in accordance with a particular impairment described in section 602(3) 
    of the Act; and
        (2) The placement in particular educational settings of these 
    children.
        (b) Review and revision of policies, practices, and procedures. In 
    the case of a determination of significant disproportionality with 
    respect to the identification of children as children with 
    disabilities, or the placement in particular educational settings of 
    these children, in accordance with paragraph (a) of this section, the 
    State or the Secretary of the Interior shall provide for the review 
    and, if appropriate revision of the policies, procedures, and practices 
    used in the identification or placement to ensure that the policies, 
    procedures, and practices comply with the requirements of Part B of the 
    Act.
    
    (Authority: 20 U.S.C. 1418(c))
    
    
    Sec. 300.756  Acquisition of equipment; construction or alteration of 
    facilities.
    
        (a) General. If the Secretary determines that a program authorized 
    under Part B of the Act would be improved by permitting program funds 
    to be used to acquire appropriate equipment, or to construct new 
    facilities or alter existing facilities, the Secretary may allow the 
    use of those funds for those purposes.
        (b) Compliance with certain regulations. Any construction of new 
    facilities or alteration of existing
    
    [[Page 55120]]
    
    facilities paragraph (a) of this section must comply with the 
    requirements of--
        (1) Appendix A of part 36 of title 28, Code of Federal Regulations 
    (commonly known as the ``Americans with Disabilities Accessibility 
    Guidelines for Buildings and Facilities''); or
        (2) Appendix A of part 101-19.6 of title 41, Code of Federal 
    Regulations (commonly known as the ``Uniform Federal Accessibility 
    Standards'').
    
    (Authority: 20 U.S.C. 1405)
    
    Appendices A and B to Part 300 [Reserved]
    
        2. Part 301 is revised to read as follows:
    
    PART 301--PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES
    
    Subpart A--General
    
    Sec.
    
    301.1  Purpose of the Preschool Grants for Children With 
    Disabilities Program.
    301.2-301.3  [Reserved]
    301.4  Applicable regulations.
    301.5  Applicable definitions.
    301.6  Applicability of Part C of the Act to two-year-old children 
    with disabilities.
    
    Subpart B--State Eligibility for a Grant.
    
    301.10  Eligibility of a State to receive a grant.
    301.11  [Reserved]
    301.12  Sanctions if a State does not make a free appropriate public 
    education available to all preschool children with disabilities.
    
    Subpart C--Allocation of Funds to a State.
    
    301.20  Allocations to States.
    301.21  Increase in funds.
    301.22  Limitation.
    301.23  Decrease in funds.
    301.24  State-level activities.
    301.25  Use of funds for State administration.
    301.26  Use of State agency allocations.
    
    Subpart D--Allocations of Funds to Local Educational Agencies.
    
    301.30  Subgrants to local educational agencies.
    301.31  Allocations to local educational agencies.
    301.32  Reallocation of local educational agency funds.
    
        Authority: 20 U.S.C. 1419, unless otherwise noted.
    
    Subpart A--General
    
    
    Sec. 301.1  Purpose of the Preschool Grants for Children With 
    Disabilities Program.
    
        The purpose of the Preschool Grants for Children With Disabilities 
    program (Preschool Grants program) is to provide grants to States to 
    assist them in providing special education and related services--
        (a) To children with disabilities aged three through five years; 
    and
        (b) At a State's discretion, to two-year-old children with 
    disabilities who will turn three during the school year.
    
    (Authority: 20 U.S.C. 1419(a))
    
    
    Secs. 301.2-301.3  [Reserved]
    
    
    Sec. 301.4  Applicable regulations.
    
        The following regulations apply to the Preschool Grants program:
        (a) The Education Department General Administrative Regulations 
    (EDGAR) in title 34 of the Code of Federal Regulations--
        (1) Part 76 (State-Administered Programs) except Secs. 76.125-
    76.137 and 76.650--76.662;
        (2) Part 77 (Definitions that Apply to Department Regulations);
        (3) Part 79 (Intergovernmental Review of Department of Education 
    Programs and Activities);
        (4) Part 80 (Uniform Administrative Requirements for Grants and 
    Cooperative Agreements to State and Local Governments);
        (5) Part 81 (General Education Provision Act--Enforcement);
        (6) Part 82 (New Restrictions on Lobbying); and
        (7) Part 85 (Governmentwide Debarment and Suspension 
    (Nonprocurement) and Governmentwide Requirements for a Drug-Free 
    Workplace (Grants)).
        (b) The regulations in this part 301.
        (c) The regulations in 34 CFR part 300.
    
    (Authority: 20 U.S.C. 1419)
    
    
    Sec. 301.5  Applicable definitions.
    
        (a) Definitions in the Act. The following terms used in this part 
    are defined in the Act: Educational service agency Local educational 
    agency State educational agency
        (b) Definitions in EDGAR. The following terms used in this part are 
    defined in 34 CFR 77.1:
    
    Applicant
    Application
    Award
    EDGAR
    Fiscal year
    Grant period
    Secretary
    Subgrant
    
        (c) Other definitions. The following definitions also apply to this 
    part:
        Act means the Individuals with Disabilities Education Act, as 
    amended.
        Part B child count means the child count required by section 
    611(d)(2) of the Act.
        Preschool means the age range of 3 through 5 years.
        State means each of the 50 States, the District of Columbia, and 
    the Commonwealth of Puerto Rico.
    
    (Authority: 20 U.S.C. 1402, 1419)
    
    
    Sec. 301.6  Applicability of Part C of the Act to two-year-old children 
    with disabilities.
    
        Part C of the Act does not apply to any child with disabilities 
    receiving a free appropriate public education, in accordance with part 
    B of the Act, with funds received under the Preschool Grants program.
    
    (Authority: 20 U.S.C. 1419(h))
    
    Subpart B--State Eligibility for a Grant
    
    
    Sec. 301.10  Eligibility of a State to receive a grant.
    
        A State is eligible to receive a grant if--
        (a) The State is eligible under 34 CFR part 300; and
        (b) The State demonstrates to the satisfaction of the Secretary 
    that it has in effect policies and procedures that assure the provision 
    of a free appropriate public education--
        (1) For all children with disabilities aged three through five 
    years in accordance with the requirements in 34 CFR part 300; and
        (2) For any two-year-old children, provided services by the SEA or 
    by an LEA or ESA under section 301.1.
    
    (Authority: 20 U.S.C. 1419 (a), (b))
    
    
    Sec. 301.11  [Reserved]
    
    
    Sec. 301.12  Sanctions if a State does not make a free appropriate 
    public education available to all preschool children with disabilities.
    
        If a State does not meet the requirements in section 619(b) of the 
    Act--
        (a) The State is not eligible for a grant under the Preschool Grant 
    program;
        (b) The State is not eligible for funds under 34 CFR part 300 for 
    children with disabilities aged 3 through 5 years; and
        (c) No SEA, LEA, ESA, or other public institution or agency within 
    the State is eligible for a grant under Subpart 2 of part D of the Act 
    if the grant relates exclusively to programs, projects, and activities 
    pertaining to children with disabilities aged 3 through 5 years.
    
    (Authority: 20 U.S.C. 1411(d)(2) and (e)(2)(B); 1419(b); 1461(j))
    
    Subpart C--Allocation of Funds to States
    
    
    Sec. 301.20  Allocations to States.
    
        After reserving funds for studies and evaluations under section 
    674(e) of the Act, the Secretary allocates the remaining amount among 
    the States in accordance with Secs. 301.21-301.23.
    
    (Authority: 20 U.S.C. 1419(c)(1))
    
    [[Page 55121]]
    
    Sec. 301.21  Increase in funds.
    
        If the amount available for allocation to States under Sec. 301.20 
    is equal to or greater than the amount allocated to the States under 
    section 619 of the Act for the preceding fiscal year, those allocations 
    are calculated as follows:
        (a) Except as provided in Sec. 301.22, the Secretary--
        (1) Allocates to each State the amount it received for fiscal year 
    1997;
        (2) Allocates 85 percent of any remaining funds to States on the 
    basis of their relative populations of children aged 3 through 5; and
        (3) Allocates 15 percent of those remaining funds to States on the 
    basis of their relative populations of children described in paragraph 
    (a)(2) of this section who are living in poverty.
        (b) For the purpose of making grants under this section, the 
    Secretary uses the most recent population data, including data on 
    children living in poverty, that are available and satisfactory to the 
    Secretary.
    
    (Authority: 20 U.S.C. 1419(c)(2)(A))
    
    
    Sec. 301.22  Limitation.
    
        (a) Notwithstanding Sec. 301.21, allocations under that section are 
    subject to the following:
        (1) No State's allocation may be less than its allocation for the 
    preceding fiscal year.
        (2) No State's allocation may be less than the greatest of--
        (i) The sum of--
        (A) The amount it received for fiscal year 1997; and
        (B) One-third of one percent of the amount by which the amount 
    appropriated under section 619(j) of the Act exceeds the amount 
    appropriated under section 619 of the Act for fiscal year 1997;
        (ii) The sum of--
        (A) The amount it received for the preceding fiscal year; and
        (B) That amount multiplied by the percentage by which the increase 
    in the funds appropriated from the preceding fiscal year exceeds 1.5 
    percent; or
        (iii) The sum of--
        (A) The amount it received for the preceding fiscal year; and
        (B) That amount multiplied by 90 percent of the percentage increase 
    in the amount appropriated from the preceding fiscal year.
        (b) Notwithstanding paragraph (a)(2) of this section, no State's 
    allocation under Sec. 301.21 may exceed the sum of--
        (1) The amount it received for the preceding fiscal year; and
        (2) That amount multiplied by the sum of 1.5 percent and the 
    percentage increase in the amount appropriated.
        (c) If the amount available for allocation to States under 
    Sec. 301.21 and paragraphs (a) and (b) of this section is insufficient 
    to pay those allocations in full, the Secretary ratably reduces those 
    allocations, subject to paragraph (a)(1) of this section.
    
    (Authority: 20 U.S.C. 1419(c)(2)(B) and (C))
    
    
    Sec. 301.23  Decrease in funds.
    
        If the amount available for allocations to States under Sec. 301.20 
    is less than the amount allocated to the States under section 619 of 
    the Act for the preceding fiscal year, those allocations are calculated 
    as follows:
        (a) If the amount available for allocations is greater than the 
    amount allocated to the States for fiscal year 1997, each State is 
    allocated the sum of--
        (1) The amount it received for fiscal year 1997; and
        (2) An amount that bears the same relation to any remaining funds 
    as the increase the State received for the preceding fiscal year over 
    fiscal year 1997 bears to the total of those increases for all States.
        (b)(1) If the amount available for allocations is equal to the 
    amount allocated to the States for fiscal year 1997, each State is 
    allocated the amount it received for that year.
        (2) If the amount available is less than the amount allocated to 
    States for fiscal year 1997, the Secretary allocates amounts equal to 
    the allocations for fiscal year 1997, ratably reduced.
    
    (Authority: 20 U.S.C. 1419(c)(3))
    
    
    Sec. 301.24  State-level activities.
    
        (a) Each State may retain not more than the amount described in 
    paragraph (b) of this section for administration and other State-level 
    activities in accordance with Secs. 301.25 and 301.26.
        (b) For each fiscal year, the Secretary determines and reports to 
    the SEA an amount that is 25 percent of the amount the State received 
    under section 619 of the Act for fiscal year 1997, cumulatively 
    adjusted by the Secretary for each succeeding fiscal year by the lesser 
    of--
        (1) The percentage increase, if any, from the preceding fiscal year 
    in the State's allocation under section 619 of the Act; or
        (2) The rate of inflation, as measured by the percentage increase, 
    if any, from the preceding fiscal year in the Consumer Price Index For 
    All Urban Consumers, published by the Bureau of Labor Statistics of the 
    Department of Labor.
    
    (Authority: 20 U.S.C. 1419 (d))
    
    
    Sec. 301.25  Use of funds for State administration.
    
        (a) For the purpose of administering section 619 of the Act 
    (including the coordination of activities under Part B of the Act with, 
    and providing technical assistance to, other programs that provide 
    services to children with disabilities), each State may use not more 
    than twenty percent of the maximum amount it may retain under 
    Sec. 301.24 for any fiscal year.
        (b) Funds described in paragraph (a) of this section may also be 
    used for the administration of Part C of the Act, if the SEA is the 
    lead agency for the State under that part.
    
    (Authority: 20 U.S.C. 1419(e))
    
    
    Sec. 301.26  Use of State agency allocations.
    
        Each State shall use any funds it retains under Sec. 301.24 and 
    does not use for administration under Sec. 301.25 for any of the 
    following:
        (a) Support services (including establishing and implementing the 
    mediation process required by section 615(e) of the Act), which may 
    benefit children with disabilities younger than 3 or older than 5 as 
    long as those services also benefit children with disabilities aged 3 
    through 5.
        (b) Direct services for children eligible for services under 
    section 619 of the Act.
        (c) Developing a State improvement plan under subpart 1 of Part D 
    of the Act.
        (d) Activities at the State and local levels to meet the 
    performance goals established by the State under section 612(a)(16) of 
    the Act and to support implementation of the State improvement plan 
    under subpart 1 of Part D of the Act if the State receives funds under 
    that subpart.
        (e) Supplementing other funds used to develop and implement a 
    Statewide coordinated services system designed to improve results for 
    children and families, including children with disabilities and their 
    families, but not to exceed one percent of the amount received by the 
    State under section 619 of the Act for a fiscal year.
    
    (Authority: 20 U.S.C. 1419(f))
    
        Note: The Individual with Disabilities Education Act Amendments 
    of 1997 made a number of changes to the Act designed to encourage 
    better coordination of services among programs, including 
    flexibility for States to use State administration funds under 
    section 619(e) to coordinate activities with other programs that 
    provide services to children with disabilities and to fund 
    administrative costs related to part C. Consistent with the intent 
    of these provisions, an example of an authorized activity under 
    paragraph (a) would be to plan
    
    [[Page 55122]]
    
    and develop a statewide comprehensive delivery system for children 
    with disabilities aged birth through five.
    
    Subpart D--Allocation of funds to local educational agencies.
    
    
    Sec. 301.30  Subgrants to local educational agencies.
    
        Each State that receives a grant under section 619 of the Act for 
    any fiscal year shall distribute any funds it does not retain under 
    Sec. 301.24 to local educational agencies in the State that have 
    established their eligibility under section 613 of the Act.
    
    (Authority: 20 U.S.C. 1419(g)(1))
    
    
    Sec. 301.31  Allocations to local educational agencies.
    
        (a) Base payments. The State shall first award each agency 
    described in Sec. 301.27 the amount that agency would have received 
    under section 619 of the Act for fiscal year 1997 if the State had 
    distributed 75 percent of its grant for that year under section 
    619(c)(3), as then in effect.
        (b) Allocation of remaining funds. After making allocations under 
    paragraph (a) of this section, the State shall--
        (1) Allocate 85 percent of any remaining funds to those agencies on 
    the basis of the relative numbers of children enrolled in public and 
    private elementary and secondary schools within the agency's 
    jurisdiction; and
        (2) Allocate 15 percent of those remaining funds to those agencies 
    in accordance with their relative numbers of children living in 
    poverty, as determined by the SEA.
    
    (Authority: 20 U.S.C. 1419(g)(1))
    
        Note: In distributing funds under paragraph (b)(1) of this 
    section, States should use the best data that is available to them 
    on enrollment in public and private schools. If data on enrollment 
    in private schools is not available, States or LEAs are not expected 
    to initiate new data collections to obtain this data. However, 
    States are encouraged to try to obtain enrollment data from private 
    schools that want their students to participate in the program.
        In distributing funds under paragraph (b)(2) of this section, 
    States have discretion in determining what data to use to allocate 
    funds among LEAs on the basis of children living in poverty. States 
    should use the best data available to them that reflect the 
    distribution of children living in poverty. Examples of options 
    include census poverty data, data on children in families receiving 
    assistance under the State program funded under Part A of title IV 
    of the Social Security Act, data on children participating in the 
    free or reduced-price meals program under the National School Lunch 
    Act, and allocations under title I of the Elementary and Secondary 
    Education Act.
    
    
    Sec. 301.32  Reallocation of LEA funds.
    
        (a) If a SEA determines that an LEA is adequately providing a free 
    appropriate public education to all children with disabilities aged 3 
    through 5 residing in the area served by that agency with State and 
    local funds, the SEA may reallocate any portion of the funds under 
    section 619 of the Act that are not needed by that local agency to 
    provide a free appropriate public education to other local educational 
    agencies in the State that are not adequately providing special 
    education and related services to all children with disabilities aged 3 
    through 5 residing in the areas they serve.
        (b) If a State provides services to preschool children with 
    disabilities because some or all LEAs and ESAs are unable or unwilling 
    to provide appropriate programs, the SEA may use payments that would 
    have been available to those LEAs or ESAs to provide special education 
    and related services to children with disabilities aged 3 through 5 
    years, and to two-year-old children with disabilities receiving 
    services consistent with Sec. 301.1 who are residing in the area served 
    by those LEAs and ESAs.
    
    (Authority 20 U.S.C. 1414(d), 1419(g)(2))
    
    PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH 
    DISABILITIES
    
        3. The authority citation for part 303 is revised to read as 
    follows:
    
        Authority: 20 U.S.C. 1431-1445, unless otherwise noted.
    
        4. Section 303.18 is revised to read as follows:
    
    
    Sec. 303.18  Parent.
    
        (a) As used in this part, ``parent'' means a parent, a guardian, a 
    person acting as a parent of a child, or a surrogate parent who has 
    been appointed in accordance with Sec. 303.406. The term does not 
    include the State if the child is a ward of the State.
        (b) State law may provide that a foster parent qualifies as a 
    parent under this part if--
        (1) The natural parents' authority to make early intervention or 
    educational decisions on the child's behalf has been relinquished under 
    State law;
        (2) The foster parent has an ongoing, long-term parental 
    relationship with the child;
        (3) The foster parent is willing to participate in making early 
    intervention or educational decisions on the child's behalf; and
        (4) The foster parent has no interest that would conflict with the 
    interests of the child.
    
    (Authority: 20 U.S.C. 1436)
    
        Note: The term ``parent'' has been defined to include persons 
    acting in the place of a parent, such as a grandparent or stepparent 
    with whom a child lives, as well as persons who are legally 
    responsible for the child's welfare, and, at the discretion of the 
    State, a foster parent meeting the requirements of paragraph (b) of 
    this section. The definition in this section is identical to the 
    definition used in the regulations under Part B of the Act (34 CFR 
    300.19).
    
        5. Section 303.403 is amended by removing the word ``and'' at the 
    end of paragraph (b)(2); removing the period at the end of paragraph 
    (b)(3) and adding, in its place, ``; and''; by adding a new paragraph 
    (b)(4); and by revising the citation of authority to read as follows:
    
    
    Sec. 303.403  Prior notice; native language.
    
    * * * * *
        (b) Content of notice. The notice must be in sufficient detail to 
    inform the parents about--
    * * * * *
        (4) The State complaint procedures under Secs. 303.510-512, 
    including a description of how to file a complaint and the timelines 
    under those procedures.
    
    (Authority: 20 U.S.C. 1439(a)(6) and (7))
    
        6. Section 303.510 is amended by revising paragraph (b); 
    redesignating the existing note as Note 1; adding a new Note 2; and 
    revising the citation of authority to read as follows:
    
    
    Sec. 303.510  Adopting complaint procedures.
    
    * * * * *
        (b) Widely disseminating to parents and other interested 
    individuals, including parent training centers, protection and advocacy 
    agencies, independent living centers, and other appropriate entities, 
    the State's procedures under Secs. 303.510 through 303.512.
    
    (Authority: 20 U.S.C. 1435(a)(10))
    
        Note 1: Because of the interagency nature of Part C of the Act, 
    complaints received under these regulations could concern violations 
    by (1) any public agency in the State that receives funds under this 
    part (e.g., the lead agency and the Council), (2) other public 
    agencies that are involved in the State's early intervention 
    program, or (3) private service providers that receive Part C funds 
    on a contract basis from a public agency to carry out a given 
    function or provide a given service required under this part. These 
    complaint procedures are in addition to any other rights under State 
    or Federal law. The lead agency must provide for the filing of a 
    complaint with the lead agency and, at the lead agency's discretion, 
    with a public agency subject to a right of appeal to the lead 
    agency.
    
        Note 2: In resolving a complaint alleging failure to provide 
    services in the IFSP, a lead
    
    [[Page 55123]]
    
    agency, pursuant to its general supervisory authority under this 
    part, may award compensatory services as a remedy.
    
        7. Section 303.511 is amended by adding a new paragraph (c) and a 
    note; and revising the citation of authority to read as follows:
    
    
    Sec. 303.511  An organization or individual may file a complaint.
    
    * * * * *
        (c) The alleged violation must have occurred not more than one year 
    prior to the date that the complaint is received by the public agency 
    unless a longer period is reasonable because the violation is 
    continuing, or the complainant is requesting compensatory services for 
    a violation that occurred not more than three years prior to the date 
    the complaint is received by the public agency.
    
    (Authority: 20 U.S.C. 1435(a)(10))
    
        Note: The lead agency must resolve any complaint that meets the 
    requirements of this section, even if the complaint is filed by an 
    organization or individual from another State.
    
        8. Section 303.512 is revised by removing paragraph (d), revising 
    the citation of authority, and adding two notes following the revised 
    citation of authority to read as follows:
    
    
    Sec. 303.512  Minimum State complaint procedures.
    
    * * * * *
    (Authority: 20 U.S.C. 1435(a)(10))
    
        Note 1: If a written complaint is received that is also the 
    subject of a due process hearing under Sec. 303.420, or contains 
    multiple issues, of which one or more may be part of that hearing, 
    the State must set aside any part of the complaint that is being 
    addressed in the due process hearing until the conclusion of the 
    hearing. However, any issue in the complaint that is not a part of 
    the due process action must be resolved within the 60-calendar-day 
    timeline using the complaint procedures described in this section.
    
        Note 2: If an issue is raised in a complaint filed under this 
    section that has previously been decided in a due process hearing 
    involving the same parties, then the hearing decision is binding, 
    and the lead agency would inform the complainant to that effect. A 
    complaint alleging a public agency's failure to implement a due 
    process decision, however, would have to be resolved by the lead 
    agency.
    
        9. Section 303.520 is amended by adding new paragraphs (d) and (e) 
    and three notes; and revising the citation of authority to read as 
    follows:
    
    
    Sec. 303.520  Policies related to payment for services.
    
    * * * * *
        (d) Infants and toddlers with disabilities who are covered by 
    private insurance.
        (1) A lead agency may not require parents of infants and toddlers 
    with disabilities, if they would incur a financial cost, to use private 
    insurance proceeds to pay for the services that must be provided to an 
    eligible infant or toddler under this part.
        (2) For the purposes of this section, the term ``financial costs'' 
    includes--
        (i) An out-of-pocket expense such as the payment of a deductible or 
    co-pay amount incurred in filing a claim, but not including incidental 
    costs such as the time needed to file an insurance claim or the postage 
    needed to mail the claim;
        (ii) A decrease in available lifetime coverage or any other benefit 
    under an insurance policy; and
        (iii) An increase in premiums or the discontinuation of the policy.
        (e) Proceeds from public or private insurance. Proceeds from public 
    or private insurance may not be treated as program income for purposes 
    of 34 CFR 80.25.
    
    (Authority: 20 U.S.C. 1435(a)(10); 1432(4)(B))
    
        Note 1: Under paragraph (d), States are prohibited from 
    requiring that families use private insurance as a condition of 
    receiving services under this part, if that use results in financial 
    cost to the family. The use of parents' insurance proceeds to pay 
    for services in these circumstances must be voluntary. For example, 
    a family could not be required to access private insurance that is 
    required to enable a child to receive Medicaid services, if that 
    insurance use results in financial costs to the family.
    
        Note 2: If the State cannot get parental consent to use private 
    insurance, the State may use funds under this part to pay for the 
    service. In addition, in order to avoid financial cost to parents 
    who would otherwise consent to use of private insurance, the lead 
    agency may use funds under this part to pay the costs of accessing 
    the insurance; e.g., deductible or co-pay amounts.
    
        Note 3: Paragraph (e) clarifies that, if a State receives funds 
    from public or private insurance for services under this part, the 
    State is not required to return those funds to the Department or to 
    dedicate those funds for use in this program, although a State 
    retains the option of using those funds in this program. If a State 
    spends reimbursements from Federal funds (e.g., Medicaid) for 
    services under this part, those funds will not be considered ``State 
    or local'' funds for purposes of the nonsupplanting provision in 
    Sec. 303.124. This is because the expenditure that is reimbursed is 
    considered to be an expenditure of funds from the source that 
    provides the reimbursement.
    
    Appendix C to Part 300--Notice of Interpretation
    
        Authority: Individuals with Disabilities Education Act (20 
    U.S.C. 1401, et seq.), unless otherwise noted.
    
    Interpretation of Individualized Education Program (IEP) Requirements 
    of the Individuals with Disabilities Education Act (IDEA)
    
        The IEP requirements of the IDEA emphasize the importance of 
    each child with a disability's involvement and progress in the 
    general curriculum; of the involvement of parents and students, 
    together with regular and special education personnel in making 
    individualized decisions to support each child's educational 
    success; and of preparing students with disabilities for employment 
    and other post-school experiences. This Appendix provides guidance 
    regarding Part B IEP requirements, especially as they relate to 
    these core concepts, as well as other issues regarding the 
    development and content of IEPs.
    
    I. Involvement and Progress in the General Curriculum
    
        In enacting the IDEA Amendments of 1997, the Congress found 
    that:
        * * * research, demonstration, and practice [over the past 20 
    years] in special education and related disciplines have 
    demonstrated that an effective educational system now and in the 
    future must--(A) maintain high academic standards and clear 
    performance goals for children with disabilities, consistent with 
    the standards and expectations for all students in the educational 
    system, and provide for appropriate and effective strategies and 
    methods to ensure that students who are children with disabilities 
    have maximum opportunities to achieve those standards and goals. 
    [Sec. 651(a)(6)(A) of the Act.]
        Accordingly, the evaluation and IEP provisions of Part B place 
    great emphasis on the involvement and progress of children with 
    disabilities in the general curriculum. While the Act and 
    regulations recognize that IEP teams must make individualized 
    decisions about the special education and related services, and 
    supplementary aids and services, provided to each child with a 
    disability, they are driven by IDEA's strong preference that, to the 
    maximum extent appropriate, children with disabilities be educated 
    in regular classes with their nondisabled peers with appropriate 
    supplementary aids and services.
        1. What are the major Part B IEP requirements that govern the 
    involvement and progress of children with disabilities in the 
    general curriculum?
    
    Present Levels of Educational Performance
    
        Section 300.347(a)(1) requires that the IEP for each child with 
    a disability include ``* * * a statement of the child's present 
    levels of educational performance, including--(i) How the child's 
    disability affects the child's involvement and progress in the 
    general curriculum; or (ii) for preschool children, as appropriate, 
    how the disability affects the child's participation in appropriate 
    activities * * *'' (Italics added.) (``Appropriate activities'' in 
    this context refers to age-relevant developmental abilities or 
    milestones that typically developing children of the same age would 
    be performing or would have achieved.)
    
    [[Page 55124]]
    
    Measurable Annual Goals, Including Benchmarks or Short-term 
    Objectives
    
        Measurable annual goals, including benchmarks or short-term 
    objectives, are instrumental to the strategic planning process used 
    to develop and implement the IEP for each child with a disability. 
    Once the IEP team has developed measurable annual goals for a child, 
    the team can (1) develop strategies that will be most effective in 
    realizing those goals and (2) develop measurable, intermediate steps 
    (short-term objectives) or major milestones (benchmarks) that will 
    enable families, students, and educators to monitor progress during 
    the year, and, if appropriate, to revise the IEP consistent with the 
    child's instructional needs.
        Part B's strong emphasis on linking the educational program of 
    children with disabilities to the general curriculum is reflected in 
    Sec. 300.347(a)(2), which requires that the IEP include:
    
    a statement of measurable annual goals, including benchmarks or 
    short-term objectives, related to--(i) meeting the child's needs 
    that result from the child's disability to enable the child to be 
    involved in and progress in the general curriculum; and (ii) meeting 
    each of the child's other educational needs that result from the 
    child's disability. [Italics added.]
    
    Special Education and Related Services and Supplementary Aids and 
    Services
    
        The requirements regarding services provided to address a 
    child's present levels of educational performance and to make 
    progress toward the identified goals reinforce the emphasis on 
    progress in the general curriculum, as well as maximizing the extent 
    to which children with disabilities are educated with nondisabled 
    children. Section 300.347(a)(3) requires that the IEP include:
    
    a statement of the special education and related services and 
    supplementary aids and services to be provided to the child, or on 
    behalf of the child, and a statement of the program modifications or 
    supports for school personnel that will be provided for the child--
    (i) To advance appropriately toward attaining the annual goals; (ii) 
    to be involved and progress in the general curriculum * * * and to 
    participate in extracurricular and other nonacademic activities; and 
    (iii) to be educated and participate with other children with 
    disabilities and nondisabled children in [extracurricular and other 
    nonacademic activities] * * * [Italics added.]
    
    Extent to Which Child Will Participate With Nondisabled Children
    
        Section 300.347(a)(4) requires that each child's IEP include ``* 
    * * an explanation of the extent, if any, to which the child will 
    not participate with nondisabled children in the regular class and 
    in [extracurricular and other nonacademic] activities] * * *'' This 
    is consistent with the least restrictive environment provisions at 
    Secs. 300.550-300.553, which include requirements that:
        (1) Each child with a disability be educated with nondisabled 
    children to the maximum extent appropriate (Sec. 300.550(b)(1));
        (2) Each child with a disability be removed from the regular 
    educational environment only when the nature or severity of the 
    child's disability is such that education in regular classes with 
    the use of supplementary aids and services cannot be achieved 
    satisfactorily (Sec. 300.550(b)(1)); and
        (3) To the maximum extent appropriate to the child's needs, each 
    child with a disability participate with nondisabled children in 
    nonacademic and extracurricular services and activities 
    (Sec. 300.553).
    
    Participation in State or Districtwide Assessments of Student 
    Achievement
    
        Consistent with Sec. 300.138(a), which sets forth a presumption 
    that children with disabilities will be included in general State-
    and district-wide assessment programs, and provided with appropriate 
    accommodations if necessary, Sec. 300.347(a)(5) requires that the 
    IEP for each student with a disability include: (i) A statement of 
    any individual modifications in the administration of State or 
    district-wide assessments of student achievement that are needed in 
    order for the child to participate in the assessment; and (ii) if 
    the IEP Team determines that the child will not participate in a 
    particular State or district-wide assessment of student achievement 
    (or part of an assessment), a statement of--(A) Why that assessment 
    is not appropriate for the child; and (B) How the child will be 
    assessed.
    
    Regular Education Teacher Participation in the Development, Review, 
    and Revision of IEPs
    
        Very often, regular education teachers play a central role in 
    the education of children with disabilities (House Report No. 105-
    95, p. 103 (1997)) and have important expertise regarding the 
    general curriculum and the general education environment. Further, 
    especially with the emphasis on involvement and progress in the 
    general curriculum added by the IDEA Amendments of 1997, regular 
    education teachers have an increasingly critical role in 
    implementing, together with special education and related services 
    personnel, the program of FAPE for most children with disabilities, 
    as described in their IEPs. Accordingly, the IDEA Amendments of 1997 
    added a requirement that each child's IEP team must include at least 
    one regular education teacher of the child, if the child is, or may 
    be, participating in the regular education environment (see 
    Sec. 300.344(a)(2)). (See also Secs. 300.346(d) on the role of a 
    regular education teacher in the development, review and revision of 
    IEPs.)
        2. Must a child's IEP address his or her involvement in the 
    general curriculum, regardless of the nature and severity of the 
    child's disability and the setting in which the child is educated?
        Yes. The IEP for all children with disabilities must address how 
    the child will be involved and progress in the general curriculum, 
    as described. The Part B regulations recognize that some children 
    with disabilities will have some educational needs that result from 
    their disabilities that cannot be fully met by involvement and 
    progress in the general curriculum; accordingly, Sec. 300.347(a)(2) 
    requires that each child's IEP include:
    
    a statement of measurable annual goals, including benchmarks or 
    short-term objectives, related to--(i) Meeting the child's needs 
    that result from the child's disability to enable the child to be 
    involved in and progress in the general curriculum; and (ii) meeting 
    each of the child's other educational needs that result from the 
    child's disability. [Italics added.]
    
    Thus, the IEP team for each child with a disability must make an 
    individualized determination regarding how the child will 
    participate in the general curriculum, and what, if any, educational 
    needs that will not be met through involvement in the general 
    curriculum should be addressed in the IEP. This includes children 
    who are educated in separate classrooms or schools.
        3. What must public agencies do to meet the requirements at 
    Secs. 300.344(a)(2) and 300.346(d), regarding the participation of a 
    ``regular education teacher'' in the development and review of the 
    IEP, for children aged 3 through 5 who are receiving preschool 
    special education services?
        If a public agency provides ``regular education'' preschool 
    services to non-disabled children, then the requirements of 
    Secs. 300.344(a)(2) and 300.346(d) apply as they do in the case of 
    older children with disabilities. If a public agency makes 
    kindergarten available to nondisabled children, then a regular 
    education kindergarten teacher could appropriately be the regular 
    education teacher who would participate in an IEP meeting for a 
    kindergarten-aged child who is, or may be, participating in the 
    regular education environment. If a public agency does not provide 
    regular preschool education services to nondisabled children, the 
    agency would designate an individual who, under State standards, is 
    qualified to serve nondisabled children of the same age.
        4. Must the measurable annual goals in a child's IEP address all 
    areas of the general curriculum, or only those areas in which the 
    child's involvement and progress are affected by the child's 
    disability?
        Section 300.347(a)(2) requires that each child's IEP include a 
    ``.*  *  * statement of measurable annual goals, including 
    benchmarks or short-term objectives, related to--(i) Meeting the 
    child's needs that result from the child's disability to enable the 
    child to be involved in and progress in the general curriculum; and 
    (ii) meeting each of the child's other educational needs that result 
    from the child's disability*  *  *  *'' (Italics added). Thus, a 
    public agency is not required to include in an IEP annuals goals 
    that relate to areas of the general curriculum in which the child's 
    disability does not affect the child's ability to be involved in and 
    progress in the general curriculum.
    
    II. Involvement of Parents and Students
    
        One of the key purposes of the IDEA Amendments of 1997 is to 
    ``Expand and promote opportunities for parents, special education, 
    related services, regular education, and early intervention service 
    providers, and other personnel to work in new partnerships at both 
    the State and local levels (House Report 105-95, p. 82 (1997)). 
    Indeed, the Committee viewed the Amendments as an opportunity to 
    ``[strengthen] the role of parents.'' (House
    
    [[Page 55125]]
    
    Report 105-95, p-82 (1997).) Accordingly, the Amendments require 
    that parents have ``an opportunity * * * to participate in meetings 
    with respect to the identification, evaluation, and educational 
    placement of the child, and the provision of FAPE to the child'' 
    (Sec. 300.501). Parents must now be part of the teams that determine 
    what additional data are needed as part of an evaluation of their 
    child (Sec. 300.533(a)(1)); their child's eligibility 
    (Sec. 300.534(a)(1)); and the educational placement of their child 
    (Sec. 300.501(c)). Parents' concerns, and information that they 
    provide regarding their children, must be considered in developing 
    and reviewing their children's IEPs (Secs. 300.343(c)(iii) and 
    300.346 (a)(1)(i) and (b)).
        As explained, the requirements for keeping parents informed 
    about the educational progress of their children, particularly as it 
    relates to their progress in the general curriculum, have been 
    strengthened (Sec. 300.347(a)(7)).
        The IDEA Amendments of 1997 and the 1990 amendments have both 
    included provisions which greatly strengthen involvement of students 
    with disabilities in decisions regarding their own futures, to 
    facilitate movement from school to post-school activities. The IDEA 
    Amendments of 1990 included provisions regarding transition 
    services, which require: (a) A coordinated set of activities within 
    an outcome-oriented process to facilitate movement from school to 
    post-school activities; (b) that the transition services provided to 
    each student be ``* * * based on the individual student's needs, 
    taking into account the student's preferences and interests'' 
    (Sec. 300.27(b)), (c) that the public agency invite a student with a 
    disability to any IEP meetings for which a purpose is the 
    consideration of transition services (Sec. 300.344(b)(1)), and that, 
    if ``* * * the student does not attend, the public agency * * * take 
    other steps to ensure that the student's preferences and interests 
    are considered (Sec. 300.344(b)(2)). States may now transfer most 
    parent rights under Part B to the student when the student reaches 
    the age of majority under State law (Sec. 300.517), and beginning at 
    least one year before a student reaches the age of majority under 
    State law, the IEP must include a statement that the student has 
    been informed of any rights that will transfer to him or her upon 
    reaching the age of majority (Sec. 300.347(c)).
        5. What is the role of the parents, including surrogate parents, 
    in decisions regarding the educational program of their children?
        The parents of a child with a disability are expected to be 
    equal participants along with school personnel, in developing, 
    reviewing, and revising the IEP for their child. This is an active 
    role in which the parents (1) provide critical information about 
    their child's abilities, interests, performance, and history, (2) 
    participate in the discussion about the child's need for special 
    education and related services and supplementary aids and services, 
    and (2) join with the other participants in deciding how the child 
    will be involved and progress in the general curriculum and 
    participate in State and district-wide assessments, and what 
    services the agency will provide to the child and in what setting.
        As noted, Part B specifically provides that parents have the 
    right to:
        (a) Participate in meetings about their child's identification, 
    evaluation, educational program (including IEP meetings), and 
    educational placement (Secs. 300.344(a)(1) and 300.517);
        (b) Be part of the teams that determine what additional data are 
    needed as part of an evaluation of their child (Sec. 300.533(a)(1)), 
    and determine their child's eligibility (Sec. 300.534(a)(1)) and 
    educational placement (Sec. 300.501(c));
        (c) Have their concerns and information that they provide 
    regarding their child considered in developing and reviewing their 
    child's IEPs (Secs. 300.343(c)(iii) and 300.346 (a)(1)(i) and (b)); 
    and
        (d) Be regularly informed (by such means as periodic report 
    cards), as specified in their child's IEP, at least as often as 
    parents are informed of their nondisabled children's progress, of 
    their child's progress toward the annual goals in the IEP and the 
    extent to which that progress is sufficient to enable the child to 
    achieve the goals by the end of the year (Sec. 300.347(a)(7)).
        A surrogate parent is a person appointed to represent the 
    interests of a child with a disability in the educational decision-
    making process when no parent (as defined at Sec. 300.19) is known, 
    the agency, after reasonable efforts, cannot locate the child's 
    parents, or the child is a ward of the State under the laws of the 
    State. A surrogate parent has all of the rights and responsibilities 
    of a parent under Part B. Thus, the surrogate parent is entitled to 
    (1) participate in the child's IEP meeting, (2) examine the child's 
    education records, and (3) receive notice, grant consent, and invoke 
    due process to resolve differences. (See Sec. 300.515, Surrogate 
    parents.)
        6. What are the Part B requirements regarding the participation 
    of a child or youth with a disability in an IEP meeting?
        If a purpose of an IEP meeting will be the consideration of 
    needed transition services, the public agency must invite the 
    student and, as part of notification to the parent of the IEP 
    meeting, inform the parents that the agency will invite the student 
    to the IEP meeting. If the student does not attend, the public 
    agency must take other steps to ensure that the student's 
    preferences and interests are considered. Section Sec. 300.517 
    permits States to transfer procedural rights under Part B from the 
    parents to students with disabilities who reach the age of majority 
    under State law, but who have not been determined to be incompetent 
    under State law. If procedural rights under Part B are, consistent 
    with State law and Sec. 300.517, transferred from the parents to the 
    student, the public agency would be required to ensure that the 
    student has the right to participate in IEP meetings set forth for 
    parents in Sec. 300.345. However, at the discretion of the student 
    or the public agency, the parents also could attend IEP meetings as 
    ``individuals who have knowledge or special expertise regarding the 
    child *  *  *'' (see Sec. 300.344(a)(6)).
        In other circumstances, the child may attend ``if appropriate.'' 
    (Sec. 300.344(a)(7)) Generally, a child with a disability should 
    attend the IEP meeting if the parent decides that it is appropriate 
    for the child to do so. If possible, the agency and parents should 
    discuss the appropriateness of the child's participation before a 
    decision is made, in order to help the parents determine whether or 
    not the child's attendance will be (1) helpful in developing the IEP 
    or (2) directly beneficial to the child or both. The agency should 
    inform the parents before each IEP meeting--as part of notification 
    under Sec. 300.345(a)(1)--that they may invite their child to 
    participate.
        7. Must the public agency let the parents know who will be at 
    the IEP meeting?
        Yes. In notifying parents about the meeting, the agency ``must 
    indicate the purpose, time, and location of the meeting, and who 
    will be in attendance.'' (Sec. 300.345(b), italics added.) In 
    addition, if a purpose of the IEP meeting is the consideration of 
    transition services for a student, the notice must also inform the 
    parents that the agency is inviting the student, and identify any 
    other agency that will be invited to send a representative. The 
    public agency should also inform the parents of their right to 
    invite to the meeting ``other individuals who have knowledge or 
    special expertise regarding the child, including related services 
    personnel as appropriate * * *'' (Sec. 300.344(a)(6)). It is also 
    appropriate for the agency to ask the parents what if any 
    individuals they will to bring to the meeting.
        8. Do parents have the right to a copy of their child's IEP?
        Yes. Section 300.345(f) states that the public agency shall give 
    the parent, on request, a copy of the IEP. It is recommended that 
    public agencies provide parents with a copy of the IEP within a 
    reasonable time following the IEP meeting, or inform them at the IEP 
    meeting of their right to request and receive a copy.
        9. What is a public agency's responsibility if it is not 
    possible to reach consensus on what services should be included in a 
    child's IEP?
        The IEP meeting serves as a communication vehicle between 
    parents and school personnel, and enables them, as equal 
    participants, to make joint, informed decisions regarding the 
    child's needs and appropriate goals, the extent to which the child 
    will be involved in the general curriculum and participate in the 
    regular education environment and State and districtwide 
    assessments, and the services needed to support that involvement and 
    participation and to achieve agreed-upon goals. Parents are to be 
    equal partners with school personnel in making these decisions, and 
    the IEP team must consider parents' concerns and information that 
    they provide regarding their child in developing and reviewing IEPs 
    (Secs. 300.343(c)(iii) and 300.346(a)(1) and (b)).
        The IEP team should work toward consensus, but the public agency 
    has ultimate responsibility to ensure that the IEP includes the 
    services that the child needs in order to receive FAPE. If it is not 
    possible to reach consensus in an IEP meeting, the public agency 
    must provide the parents with
    
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    prior written notice of the agency's proposals or refusals, or both, 
    regarding the child's educational program and placement, and the 
    parents have the right to seek resolution of any disagreements 
    through mediation or other informal means, or by initiating an 
    impartial due process hearing. Every effort should be made to 
    resolve differences between parents and school staff through 
    voluntary mediation or some other informal step, without resort to a 
    due process hearing. However, mediation or other informal procedures 
    may not be used to deny or delay a parent's right to a due process 
    hearing.
        10. Does Part B require that public agencies inform parents 
    regarding the educational progress of their children with 
    disabilities?
        Yes, the Part B statute and regulations include a number of 
    provisions to help ensure that parents are involved in decisions 
    regarding, and informed about, their child's educational progress, 
    including the child's progress in the general curriculum. First, the 
    parents will be informed regarding their child's present levels of 
    educational performance through the development of the IEP. Section 
    300.347(a)(1) requires that each IEP include:
    
    * * * a statement of the child's present levels of educational 
    performance, including--(i) How the child's disability affects the 
    child's involvement and progress in the general curriculum; or (ii) 
    for preschool children, as appropriate, how the disability affects 
    the child's participation in appropriate activities * * *
    
        Further, Sec. 300.347(a)(7) sets forth requirements for 
    regularly informing parents about their child's educational 
    progress. That section requires that the IEP include:
    
    * * * a statement of--(i) How the child's progress toward the annual 
    goals * * * will be measured; and (ii) how the child's parents will 
    be regularly informed (by such means as periodic report cards), at 
    least as often as parents of nondisabled children are informed, of--
    (A) Their child's progress toward the annual goals * * * ; and (B) 
    the extent to which that progress is sufficient to enable the child 
    to achieve the goals by the end of the year.
    
        Finally, the parents will, as part of the IEP team, participate, 
    at least once every 12 months, in a review of their child's 
    educational progress. Part B requires that a public agency initiate 
    and conduct a meeting, at which the IEP team:
    
    * * * (1) Reviews the child's IEP periodically, but not less than 
    annually to determine whether the annual goals for the child are 
    being achieved; and (2) revises the IEP as appropriate to address--
    (i) Any lack of expected progress toward the annual goals * * * and 
    in the general curriculum, if appropriate; (ii) The results of any 
    reevaluation * * * ; (iii) Information about the child provided to, 
    or by, the parents * * * ; (iv) The child's anticipated needs; or 
    (v) Other matters.
    
    III. Preparing Students With Disabilities for Employment and Other 
    Post-School Experiences
    
        One of the primary purposes of the IDEA is to ``* * * ensure 
    that all children with disabilities have available to them a free 
    appropriate public education that emphasizes special education and 
    related services designed to meet their unique needs and prepare 
    them for employment and independent living * * *'' (Sec. 300.1(a)).
        Similarly, one of the key purposes of the IDEA Amendments of 
    1997 was to ``promote improved educational results for children with 
    disabilities through early intervention, preschool, and educational 
    experiences that prepare them for later educational challenges and 
    employment.'' (House Report No. 105-95, p. 82 (1997).) Thus, 
    throughout their preschool, elementary, and secondary education, the 
    IEP for each child with a disability must, to the extent appropriate 
    for the individual child, focus on providing instruction and 
    experiences that enable the child to prepare himself or herself for 
    later educational experiences and for post-school activities, 
    including formal education, if appropriate, employment, and 
    independent living.
        Although preparation for adult life is, as explained, a key 
    component of a free appropriate public education throughout a 
    child's educational experiences, Part B sets forth specific 
    requirements for transition from secondary education to post-school 
    activities, which must be implemented no later than age 14 and 16, 
    respectively, which require an intensified focus on that preparation 
    as students with disabilities begin and prepare to complete their 
    secondary education.
        11. What must the IEP team do to meet the requirements that the 
    IEP include ``a statement of * * * transition service needs'' 
    beginning at age 14 (Sec. 300.347(b)(1)(i)),'' and a statement of 
    needed transition services'' no later than age 16 
    (Sec. 300.347(b)(1)(ii))?
        Section 300.347(b)(1) requires that, beginning no later than age 
    14, each student's IEP include specific transition-related content, 
    and, beginning no later than age 16, a statement of needed 
    transition services:
        Beginning at age 14, each student's IEP must include ``* * * a 
    statement of the transition service needs of the child under the 
    applicable components of the child's IEP that focuses on the child's 
    courses of study (such as participation in advanced-placement 
    courses or a vocational education program)'' 
    (Sec. 300.347(b)(1)(i)).
        No later than age 16 (and younger, if determined appropriate by 
    the IEP Team), each student's IEP must include ``a statement of 
    needed transition services for the child, including, if appropriate, 
    a statement of the interagency responsibilities or any needed 
    linkages * * *'' (Sec. 300.347(b)(1)(ii)).
        The House Report on the IDEA Amendments of 1997 makes clear that 
    the requirement added to the statute in 1997 that beginning at age 
    14, or younger if appropriate, the IEP include ``a statement of the 
    transition service needs'' is ``* * * designed to augment, and not 
    replace,'' the separate, preexisting requirement that the IEP 
    include, ``* * * beginning at age 16 (or younger, if determined 
    appropriate by the IEP Team), a statement of needed transition 
    services * * *'' (House Report No. 105-95, p. 102 (1997).) As 
    clarified by the Report, ``The purpose of [the requirement in 
    Sec. 300.347(b)(1)(i)] is to focus attention on how the child's 
    educational program can be planned to help the child make a 
    successful transition to his or her goals for life after secondary 
    school.'' (House Report No. 105-95, pp. 101-102 (1997).) The report 
    further explains that ``[F]or example, for a child whose transition 
    goal is a job, a transition service could be teaching the child how 
    to get to the job site on public transportation.'' (House Report No. 
    105-95, p-102 (1997).) Thus, beginning at age 14, the IEP team, in 
    determining appropriate measurable annual goals (including 
    benchmarks or short-term objectives) and services for a student, 
    must determine what instruction and educational experiences will 
    assist the student to prepare for transition from secondary 
    education to post-secondary life. The statement of transition 
    service needs should relate directly to the student's goals beyond 
    secondary education, and show how planned studies are linked to 
    these goals. For example, a student interested in exploring a career 
    in computer science may have a statement of transition service needs 
    connected to technology course work, while another student's 
    statement of transition needs could describe why public bus 
    transportation training is important for future independence in the 
    community. Though the focus of the transition planning process may 
    shift as the student approaches graduation, the IEP team must 
    discuss specific areas beginning at the age of 14 years and review 
    these areas annually.
        This requirement is distinct from the requirement, at 
    Sec. 300.347(b)(1)(ii), that the IEP include:
    
    * * * beginning at age 16 (or younger, if determined appropriate by 
    the IEP Team), a statement of needed transition services for the 
    child, including, if appropriate, a statement of the interagency 
    responsibilities or any needed linkages.
    
        The term ``transition services'' is defined at Sec. 300.27 to 
    mean:
    
        * * * a coordinated set of activities for a student with a 
    disability that--(a) Is designed within an outcome-oriented process, 
    that promotes movement from school to post-school activities, 
    including postsecondary education, vocational training, integrated 
    employment (including supported employment), continuing and adult 
    education, adult services, independent living, or community 
    participation; (b) Is based on the individual student's needs, 
    taking into account the student's preferences and interests; and (c) 
    Includes--(1) Instruction; (2) Related services; (3) Community 
    experiences; (4) The development of employment and other post-school 
    adult living objectives; and (5) If appropriate, acquisition of 
    daily living skills and functional vocational evaluation. (Section 
    Sec. 300.347(b)(2) provides, however, that, ``If the IEP team 
    determines that services are not needed in one or more of the areas 
    specified in Sec. 300.27((c)(1) through (4), the IEP must include a 
    statement to that effect and the basis upon which the determination 
    was made.)
    
        Thus, while Sec. 300.347(b)(1)(i) requires that the IEP team 
    begin by age 14 to address the
    
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    student's need for instruction that will assist the student to 
    prepare for transition, Sec. 300.347(b)(2)(ii) requires that by age 
    16 the IEP include a ``coordinated set of activities * * *, designed 
    within an outcome-oriented process, that promotes movement from 
    school to post-school activities. * * *'' Section 300.344(b)(3) 
    further requires that, in implementing Sec. 300.347(b)(2)(ii), 
    public agencies invite (in addition to required participants for all 
    IEP meetings), must also invite a representative of any other agency 
    that is likely to be responsible for providing or paying for 
    transition services. Thus, Sec. 300.346(a)(7)(ii) requires a broader 
    focus on coordination of services across, and linkages between, 
    agencies beyond the SEA and LEA.
        12. Must the IEP for each student with a disability, beginning 
    no later than age 16, include all ``needed transition services,'' as 
    identified by the IEP team and consistent with the definition at 
    Sec. 300.27, even if an agency other than the public agency will 
    provide those services? What is the public agency's responsibility 
    if another agency fails to provide agreed-upon transition services?
        Section 300.347(b)(1)(ii) requires that the IEP for each child 
    with a disability, beginning no later than age 16, or younger if 
    determined appropriate by the IEP team, include all ``needed 
    transition services,'' as identified by the IEP team and consistent 
    with the definition at Sec. 300.27, regardless of whether the public 
    agency or some other agency will provide those services. Section 
    300.346(b)(1)(ii) specifically requires that the statement of needed 
    transition services include, ``* * * if appropriate, a statement of 
    the interagency responsibilities or any needed linkages.''
        Further, the need to include in the IEP transition services to 
    be provided by agencies other than the public agency is contemplated 
    by Sec. 300.348(a), which specifies what the public agency must do 
    if another agency participating in the development of the statement 
    of needed transition services fails to provide a needed transition 
    service that it agreed to provide:
    
    If a participating agency fails to provide agreed-upon transition 
    services contained in the IEP of a student with a disability, the 
    public agency responsible for the student's education shall, as soon 
    as possible, initiate a meeting for the purpose of identifying 
    alternative strategies to meet the transition objectives and, if 
    necessary, revising the student's IEP.
    
        This requirement is consistent with the public agency's ultimate 
    responsibility to ensure that FAPE is available to each eligible 
    child with a disability (see Sec. 300.300). That responsibility 
    includes the planning and coordination of transition services 
    through the IEP. This inter-agency planning and coordination may be 
    supported through a variety of mechanisms, including memoranda of 
    understanding, interagency agreements, assignment of a transition 
    coordinator to work with other participating agencies, or the 
    establishment of guidelines to work with other agencies identified 
    as potential service providers. If an agreed-upon service by another 
    agency is not provided, the public agency responsible for the 
    student must exercise alternative strategies to meet the student's 
    needs. This requires that the public agency provide the services, or 
    convene an IEP meeting as soon as possible to identify alternative 
    strategies to meet the needs of the transition services needs of the 
    student, and to revise the IEP accordingly. Alternative strategies 
    might include the identification of another funding source, referral 
    to another agency, the public agency's identification of other 
    district-wide or community resources that it can use to meet the 
    student's identified need appropriately, or a combination of these 
    strategies. As emphasized by Sec. 300.348(b), however:
    
    Nothing in [Part B] relieves any participating agency, including a 
    State vocational rehabilitation agency, of the responsibility to 
    provide or pay for any transition service that the agency would 
    otherwise provide to students with disabilities who meet the 
    eligibility criteria of that agency.
    
        However, the fact that an agency other than the LEA does not 
    fulfill its responsibility does not relieve the LEA of its 
    responsibility to ensure that FAPE is available to each student with 
    a disability.
    
        Note: See also Sec. 300.142(b)(2), which requires that if an 
    agency other than the LEA fails to provide or pay for a special 
    education or related service (which could include a transition 
    service), the LEA must provide or pay for the service, and may then 
    claim reimbursement from the agency that failed to provide or pay 
    for the service.
    
        13. Under what circumstances must a public agency invite 
    representatives from other agencies to an IEP meeting at which a 
    child's need for transition services will be considered?
        Section 300.344(c)(ii) requires that, ``In implementing the 
    requirements of [Sec. 300.347(b)(1)(ii) requiring a statement of 
    needed transition services], the public agency shall also invite a 
    representative of any other agency that is likely to be responsible 
    for providing or paying for transition services.'' To meet this 
    requirement, the public agency must establish and implement 
    appropriate procedures to ensure that it identifies all agencies 
    that are ``likely to be responsible for providing or paying for 
    transition services'' for each student addressed by 
    Sec. 300.347(b)(1)(ii), and invites each of those agencies to the 
    IEP meeting. If, during the course of an IEP meeting, the team 
    identifies additional agencies that are ``likely to be responsible 
    for providing or paying for transition services'' for the student, 
    the public agency must determine whether it is necessary to invite 
    those agencies to an additional IEP meeting in order to develop an 
    appropriate statement of needed transition services for the student.
    
    IV. Other Questions Regarding the Development and Content of IEPS
    
        14. For a child with a disability receiving special education 
    for the first time, when must an IEP be developed--before placement 
    or after placement?
        Section 300.342(b)(1) requires that an IEP be ``in effect before 
    special education and related services are provided to a child.'' 
    (Italics added.) The appropriate placement for a particular child 
    with a disability cannot be determined until after decisions have 
    been made about the child's needs and the services that the public 
    agency will provide to meet those needs. These decisions must be 
    made at the IEP meeting, and it would not be permissible first to 
    place the child and then develop the IEP. Therefore, the IEP must be 
    developed before placement. This requirement does not preclude 
    temporarily placing an eligible child with a disability in a program 
    as part of the evaluation process--before the IEP is finalized--to 
    assist a public agency in determining the appropriate placement for 
    the child. It is essential that the temporary placement not become 
    the final placement before the IEP is finalized. In order to ensure 
    that this does not happen, the State might consider requiring LEAs 
    to take the following actions:
        a. Develop an interim IEP for the child that sets out the 
    specific conditions and timelines for the trial placement. (See 
    paragraph c.)
        b. Ensure that the parents agree to the interim placement before 
    it is carried out, and that they are involved throughout the process 
    of developing, reviewing, and revising the child's IEP.
        c. Set a specific timeline (e.g., 30 days) for completing the 
    evaluation, finalizing the IEP, and making judgments about the most 
    appropriate placement for the child.
        d. Conduct an IEP meeting at the end of the trial period in 
    order to finalize the child's IEP.
        15. Who is responsible for ensuring the development of IEPs for 
    children with disabilities served by a public agency other than an 
    LEA?
        The answer as to which public agency has direct responsibility 
    for ensuring the development of IEPs for children with disabilities 
    served by a public agency other than an LEA will vary from State to 
    State, depending upon State law, policy, or practice. The SEA is 
    ultimately responsible for ensuring that all Part B requirements, 
    including the IEP requirements, are met for eligible children within 
    the State, including those children served by a public agency other 
    than an LEA. (See Sec. 300.600 regarding the SEA's general 
    supervisory responsibility for all education programs for children 
    with disabilities, with one exception. The Governor (or another 
    individual pursuant to State law) may, consistent with State law, 
    assign to any public agency in the State the responsibility of 
    ensuring that Part B requirements are met with respect to children 
    with disabilities who are convicted as adults under State law and 
    incarcerated in adult prisons.)
        The SEA must ensure that every child with a disability in the 
    State has FAPE available, regardless of which State or local agency 
    is responsible for educating the child. (The only exception to this 
    responsibility is that, as noted, the SEA is not responsible for 
    ensuring that FAPE is made available to children with disabilities 
    who are convicted as adults under State law and incarcerated in 
    adult prisons, if the State has assigned that responsibility to a 
    public agency other than the SEA.) Although the SEA has flexibility 
    in deciding the best means to meet this obligation (e.g., through 
    interagency
    
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    agreements), the SEA must ensure that no eligible child with a 
    disability is denied FAPE due to jurisdictional disputes among 
    agencies.
        When an LEA is responsible for the education of a child with a 
    disability, the LEA remains responsible for developing the child's 
    IEP, regardless of the public or private school setting into which 
    it places the child.
        16. For a child placed out of State by an educational or non-
    educational State or local agency, is the placing or receiving State 
    responsible for the child's IEP?
        Regardless of the reason for the placement, the ``placing'' 
    State is responsible for developing the child's IEP and ensuring 
    that it is implemented. The determination of the specific agency in 
    the placing State that is responsible for the child's IEP would be 
    based on State law, policy, or practice. However, the SEA in the 
    placing State is responsible for ensuring that the child has FAPE 
    available.
        17. If a disabled child has been receiving special education 
    from one public agency and transfers to another public agency in the 
    same State, must the new public agency develop an IEP before the 
    child can be placed in a special education program?
        If a child with a disability changes school districts in the 
    same State, the State and its public agencies have an ongoing 
    responsibility to ensure that the child receives FAPE, and the new 
    public agency is responsible for ensuring that the child receives 
    special education and related services in conformity with an IEP. 
    The new public agency must ensure that the child has an IEP in 
    effect before the agency can provide special education and related 
    services. The new public agency may meet this responsibility by 
    either adopting the IEP the former public agency developed for the 
    child or by developing a new IEP for the child. Before the child's 
    IEP is finalized, the new public agency may provide interim services 
    agreed upon by both the parents and the new public agency. If the 
    parents and the new public agency are unable to agree on an interim 
    IEP and placement, the new public agency must implement the old IEP 
    to the extent possible until a new IEP is developed and implemented.
        In general, while the new public agency must conduct an IEP 
    meeting, it would not be necessary if: (1) A copy of the child's 
    current IEP is available; (2) the parents indicate that they are 
    satisfied with the current IEP; and (3) the new public agency 
    determines that the current IEP is appropriate and can be 
    implemented as written.
        If the child's current IEP is not available, or if either the 
    new public agency or the parent believes that it is not appropriate, 
    the new public agency must conduct an IEP meeting within a short 
    time after the child enrolls in the new public agency (normally, 
    within one week).
        18. What timelines apply to the development and implementation 
    of an initial IEP for a child with a disability?
        Section 300.343(b) requires a public agency to: (1) Ensure that 
    an offer of services in accordance with an IEP is made to parents 
    within a reasonable period of time from the agency's receipt of 
    parent consent to an initial evaluation; and (2) in meeting that 
    timeline, conduct a meeting to develop the IEP within 30-calendar 
    days of a determination that the child needs special education and 
    related services. Section 300.342(b)(2) requires that an IEP be 
    implemented as soon as possible following the meeting in which the 
    IEP is developed.
        19. Must a public agency hold separate meetings to determine a 
    child's eligibility for special education and related services, 
    develop the child's IEP, and determine the child's placement, or may 
    the agency meet all of these requirements in a single meeting?
        A public agency may, after a child is determined by ``a team of 
    qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to 
    be a child with a disability who needs special education services, 
    continue in the same meeting to develop an IEP for the child and to 
    determine the child's placement. However, the public agency must 
    ensure that it: (1) Meets all of the Part B requirements regarding 
    meetings to develop IEPs, including providing appropriate 
    notification to the parents, consistent with the requirements of 
    Sec. 300.345, and including the required team participants, 
    consistent with the requirements of Sec. 300.344; and (2) the 
    requirements of Sec. 300.533 regarding eligibility decisions.
        20. How frequently must a public agency conduct meetings to 
    review, and if appropriate revise, the IEP for each child with a 
    disability?
        A public agency must initiate and conduct meetings periodically, 
    but at least once every twelve months, to determine whether the 
    annual goals for the child are being achieved, and to revise the IEP 
    as appropriate to address: (a) Any lack of expected progress toward 
    the annual goals and in the general curriculum, if appropriate; (b) 
    the results of any reevaluation; (c) information about the child 
    provided to, or by, the parents; (d) the child's anticipated needs; 
    or (e) other matters (Sec. 300.343(c)).
        A public agency must also ensure that an IEP is in effect for 
    each child at the beginning of each school year (Sec. 300.342(a)). 
    It may conduct IEP meetings at any time during the year. However, if 
    the agency conducts the IEP meeting prior to the beginning of the 
    next school year, it must ensure that the IEP contains the necessary 
    special education and related services and supplementary aids and 
    services to ensure that the student's IEP can be appropriately 
    implemented during the next school year. Otherwise, it would be 
    necessary for the public agency to conduct another IEP meeting.
        Although the public agency is responsible for determining when 
    it is necessary to conduct an IEP meeting, the parents of a child 
    with a disability have the right to request an IEP meeting at any 
    time. For example, if the parents believe that the child is not 
    progressing satisfactorily or that there is a problem with the 
    child's current IEP, it would be appropriate for the parents to 
    request an IEP meeting. If a child's teachers feels that the child's 
    placement or IEP services are not appropriate to the child, the 
    teachers should follow agency procedures with respect to (1) calling 
    or meeting with the parents or (2) requesting the agency to hold 
    another IEP meeting to review the child's IEP. The legislative 
    history of Public Law 94-142 makes it clear that there should be as 
    many meetings a year as any one child may need (121 Cong. Rec. 
    S20428-29 (Nov. 19, 1975) (remarks of Senator Stafford)).
        In general, if either a parent or a public agency believes that 
    a required component of the student's IEP should be changed, the 
    public agency must conduct an IEP meeting if it believes that the 
    question of whether the student's IEP needs to be revised to ensure 
    the provision of FAPE to the student is a matter that must be 
    considered by the IEP team. If a parent requests an IEP meeting 
    because the parent believes that a change in the provision of FAPE 
    to the child or the educational placement of the child, and the 
    agency refuses to convene an IEP meeting to determine whether such a 
    change is needed, the agency must provide written notice to the 
    parents of the refusal, including an explanation of why the agency 
    has determined that conducting the meeting is not necessary to 
    ensure the provision of FAPE to the student. Under Sec. 300.506(a), 
    the parents or agency may initiate a due process hearing at any time 
    regarding any proposal or refusal regarding the identification, 
    evaluation, or educational placement of the child, or the provision 
    of FAPE to the child.
        21. May IEP meetings be audio or video-tape-recorded?
        Part B does not address the use of audio or video recording 
    devices at IEP meetings, and no other Federal statute either 
    authorizes or prohibits the recording of an IEP meeting by either a 
    parent or a school official. Therefore, an SEA or public agency has 
    the option to require, prohibit, limit, or otherwise regulate the 
    use of recording devices at IEP meetings. If a public agency has a 
    policy prohibiting the use of these devices at IEP meetings, that 
    policy must provide for exceptions if they are necessary to ensure 
    that the parent understands the IEP or the IEP process or to 
    implement other parental rights guaranteed under Part B. Any 
    recording of an IEP meeting that is maintained by the public agency 
    is an ``education record,'' within the meaning of the Family 
    Educational Rights and Privacy Act (``FERPA''; 20 U.S.C. 1232g), and 
    would, therefore, be subject to the confidentiality requirements of 
    the regulations under both FERPA (34 CFR Part 99) and Part B 
    (Secs. 300.560-300.575).
        Parents wishing to use audio or video recording devices at IEP 
    meetings should consult State or local policies for further 
    guidance.
        22. Who can serve as the representative of the public agency at 
    an IEP meeting?
        The IEP team must include a representative of the local 
    educational agency who: (a) Is qualified to provide, or supervise 
    the provision of, specially designed instruction to meet the unique 
    needs of children with disabilities; (b) is knowledgeable about the 
    general curriculum; and (c) is knowledgeable about the availability 
    of resources of the local educational agency (Sec. 300.344(a)(4)). 
    Each State or local agency may determine which specific staff member 
    will serve as the agency representative in a particular IEP meeting, 
    so long as the individual meets these
    
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    requirements. It is, however, important that the agency 
    representative have the authority to commit agency resources and be 
    able to ensure that whatever services are set out in the IEP will 
    actually be provided.
    
        Note: IEP meetings for continuing placements may in some 
    instances be more routine than those for initial placements, and, 
    thus, may not require the participation of a key administrator.
    
        23. For a child with a disability being considered for initial 
    placement in special education, which teacher or teachers should 
    attend the IEP meeting?
        A child's IEP team must include at least one of the student's 
    regular education teachers (if the child is, or may be participating 
    in the regular education environment) and at least one special 
    education teacher, or, if appropriate, at least one of the child's 
    special education providers (Sec. 300.344(a)(2) and (3)). Each IEP 
    must include a statement of present levels of educational 
    performance, including a statement of how the child's disability 
    affects the child's involvement and progress in the general 
    curriculum (Sec. 300.347(a)(1)). The regular education teacher is a 
    required participant on the IEP team of a child who is, or may be, 
    participating in the regular educational environment, regardless of 
    the extent of that participation.
        The child's special education teacher could be either (1) a 
    teacher qualified to provide special education in the child's area 
    of suspected disability, or (2) another special education provider 
    such as a speech pathologist, physical or occupational therapist, 
    etc., if the related service consists of specially designed 
    instruction and is considered special education under the applicable 
    State standard.
    
        Note: Sometimes more than one meeting is necessary in order to 
    finalize a child's IEP. In this process, if the special education 
    teacher who will be working with the child is identified, it would 
    be useful to have that teacher participate in the meeting with the 
    parents and other members of the IEP team in finalizing the IEP. If 
    this is not possible, the agency should ensure that the teacher is 
    given a copy of the child's IEP as soon as possible after the IEP is 
    finalized and before the teacher begins working with the child.
    
        24. If a child with a disability attends several regular 
    classes, must all of the child's regular education teachers attend 
    the IEP meeting?
        No. The IEP team need not include more than one regular 
    education teacher of the child. If the participation of more than 
    one regular education teacher is considered by the agency or the 
    parents to be beneficial to the child's success in school (e.g., in 
    terms of enhancing the child's participation in the general 
    curriculum), it would be appropriate for them to attend the meeting.
        25. For a child whose primary disability is a speech impairment, 
    may a public agency meet its responsibility under Sec. 300.344(a)(3) 
    to ensure that the IEP team includes ``at least one special 
    education teacher, or, if appropriate, at least one special 
    education provider of the child'' by including a speech-language 
    pathologist in the IEP team?
        Yes, if speech is considered special education under State 
    standards. As with other children with disabilities, the IEP team 
    must also include at least one of the child's regular education 
    teachers if the child is, or may be, participating in the regular 
    education environment.
        26. Do public agencies and parents have the option of bringing 
    any individual of their choice to a student's IEP meeting? Would it 
    be permissible for other individuals to attend IEP meetings at the 
    discretion of the parents or the agency?
        The IEP team may, at the discretion of the parent or the agency, 
    include ``other individuals who have knowledge or special expertise 
    regarding the child * * * '' (Sec. 300.344(a)(6), italics added). 
    This is a change from prior law, which had provided, without 
    qualification, that parents or agencies could bring other 
    individuals to IEP meetings at the discretion of the parents or 
    agency. However, the legislative history of Public Law 94-142 made 
    it clear that attendance at IEP meetings should be limited to those 
    who have an intense interest in the child. (121 Cong. Rec. S10974 
    (June 18, 1975) (remarks of Sen. Randolph).)
        Part B does not provide for the participation of individuals 
    such as representatives of teacher organizations or attorneys at IEP 
    meetings. For example, since a representative of a teacher 
    organization would be concerned with the interests of the teacher 
    rather than the interests of the child, and generally would not 
    possess knowledge or expertise regarding the child, it generally 
    would be inappropriate for such an official to attend an IEP 
    meeting. While either the parent or public agency may consider 
    inviting their attorneys to an IEP meeting, parents and public 
    agencies need to ensure that their attorneys possess knowledge and 
    expertise regarding the child to warrant their participation. 
    However, the participation of attorneys at IEP meetings should be 
    discouraged if their participation would have the potential for 
    creating an adversarial atmosphere which would not necessarily be in 
    the best interests of the child. Further, as provided in Section 
    615(i)(3)(D)(ii) of the Act, ``Attorneys'' fees may not be awarded 
    relating to any meeting of the IEP Team unless such meeting is 
    convened as a result of an administrative proceeding or judicial 
    action, or, at the discretion of the State, for a mediation * * * 
    conducted prior to the [request for a due process hearing].''
        27. Must related services personnel attend IEP meetings?
        Although Part B does not expressly require that the IEP team 
    include related services personnel as part of the IEP team 
    (Sec. 300.344(a)), it is appropriate for those persons to be 
    included if a particular related service is to be discussed as part 
    of the IEP meeting. Section 300.344(a)(6) provides that the IEP team 
    also includes ``at the discretion of the parent or the agency, other 
    individuals who have knowledge or special expertise regarding the 
    child, including related services personnel as appropriate * * *.'' 
    (Italics added.)
        Further, Sec. 300.344(a)(3) requires that the IEP team for each 
    child with a disability include ``at least one special education 
    teacher, or, if appropriate, at least one special education provider 
    of the child * * * '' This requirement can be met by the 
    participation of either (1) a special education teacher of the 
    child, or (2) another special education provider such as a speech 
    pathologist, physical or occupational therapist, etc., if the 
    related service consists of specially designed instruction and is 
    considered special education under the applicable State standard.
        If a child with a disability has an identified need for related 
    services, it would be appropriate for the related services personnel 
    to attend the meeting or otherwise be involved in developing the 
    IEP. As explained in the House Report on the IDEA Amendments of 
    1997, ``Related services personnel should be included on the team 
    when a particular related service will be discussed at the request 
    of the child's parents or the school.'' (House Report 105-95, p. 103 
    (1997).) For example, if the child's evaluation indicates the need 
    for a specific related service (e.g., physical therapy, occupational 
    therapy, special transportation services, school social work 
    services, school health services, or counseling), the agency should 
    ensure that a qualified provider of that service either (1) attends 
    the IEP meeting, or (2) provides a written recommendation concerning 
    the nature, frequency, and amount of service to be provided to the 
    child. This written recommendation could be a part of the evaluation 
    report.
        28. Must the public agency ensure that all services specified in 
    a child's IEP are provided?
        Yes. The public agency must ensure that all services set forth 
    in the child's IEP are provided, consistent with the child's needs 
    as identified in the IEP. It may provide each of those services 
    directly, through its own staff resources; indirectly, by 
    contracting with another public or private agency; or through other 
    arrangements. In providing the services, the agency may use whatever 
    State, local, Federal, and private sources of support are available 
    for those purposes (see Sec. 300.301(a)), but the services must be 
    at no cost to the parents, and the public agency remains responsible 
    for ensuring that the IEP services are provided in a manner that 
    appropriately meets the student's needs as specified in the IEP. The 
    SEA and responsible public agency may not allow the failure of 
    another agency to provide services described in the child's IEP to 
    deny or delay the provision of FAPE to a child.
        29. Is it permissible for an agency to have the IEP completed 
    before the IEP meeting begins?
        No. Agency staff may come to an IEP meeting prepared with 
    evaluation findings and proposed recommendations regarding IEP 
    content, but the agency must make it clear to the parents at the 
    outset of the meeting that the services proposed by the agency are 
    only recommendations for review and discussion with the parents. 
    Agencies that use this approach must ensure that there is a full 
    discussion with the parents of the child's needs and the services to 
    be provided to meet those needs before the child's IEP is finalized.
    
    [[Page 55130]]
    
        30. Must a public agency include transportation in a child's IEP 
    as a related service?
        A public agency must provide transportation as a related service 
    if it is required to assist the disabled child to benefit from 
    special education. (This includes transporting a preschool-aged 
    child to the site at which the public agency provides special 
    education and related services to the child, if that site is 
    different from the site at which the child receives other preschool 
    or daycare services.) In determining whether to include 
    transportation in a child's IEP, the IEP team must consider how the 
    child's disability affects the child's need for transportation, 
    including determining whether the child's disability prevents the 
    child from using the same transportation provided to nondisabled 
    children, or from getting to school in the same manner as 
    nondisabled children. The public agency must ensure that any 
    transportation service included in a child's IEP as a related 
    service is provided at public expense and at no cost to the parents, 
    and that the child's IEP describes the transportation arrangement.
        Even if a child's IEP team determines that the child does not 
    require transportation as a related service, Section 504 of the 
    Rehabilitation Act of 1973 requires that the child receive the same 
    transportation provided to nondisabled children. If a public agency 
    transports nondisabled children, it must transport disabled children 
    under the same terms and conditions. However, if a child's IEP team 
    determines that a student does not need transportation as a related 
    service, and the public agency transports only those children whose 
    IEPs specify transportation as a related service, and does not 
    transport nondisabled children, the public agency would not be 
    required to provide transportation to a disabled child.
        31. Must a public agency provide related services that are 
    required to assist a child with a disability to benefit from special 
    education, whether or not those services are included in the list of 
    related services in Sec. 300.16?
        The Note following Sec. 300.16 clarifies that ``[T]he list of 
    related services is not exhaustive and may include other 
    developmental, corrective, or supportive services * * * ), if they 
    are required to assist a child with a disability to benefit from 
    special education.'' This could, depending upon the unique needs of 
    a child, include such services as nutritional services or service 
    coordination.
        32. Must the IEP specify the amount of services or may it simply 
    list the services to be provided?
        The amount of services to be provided must be stated in the IEP, 
    so that the level of the agency's commitment of resources will be 
    clear to parents and other IEP team members. The amount of time to 
    be committed to each of the various services to be provided must be 
    (1) appropriate to the specific service, and (2) stated in the IEP 
    in a manner that is clear to all who are involved in both the 
    development and implementation of the IEP.
    
     Appendix--Distribution Table Showing Each Current Regulatory Section and the Corresponding Proposed Regulatory 
                                                       Section \1\                                                  
                        [Note: Appendix will not be codified in the Code of Federal Regulations]                    
    ----------------------------------------------------------------------------------------------------------------
      Current regulatory section current    Comparable proposed regulatory section                                  
                  section No.                        proposed section No.               Subpart and section title   
    ----------------------------------------------------------------------------------------------------------------
                                                                                           Subpart A--General       
                                                                                                                    
                                                                                       Purpose Applicability, and   
                                                                                      Regulations That Apply to This
                                                                                                 Program            
                                                                                                                    
    300.1.................................  300.1.................................  Purpose.                        
    300.2.................................  300.2.................................  Applicability to State, local,  
                                                                                     and private agencies.          
    300.3.................................  300.3.................................  Regulations that apply.         
                                                                                                                    
                                                                                               Definitions          
                                                                                                                    
    300.4.................................  300.4.................................  Act.                            
    300.5.................................  300.5.................................  Assistive technology device.    
    300.6.................................  300.6.................................  Assistive technology service.   
    300.7.................................  300.7.................................  Children with disabilities.     
                                                                                     (Retitled ``Child with a       
                                                                                     disability.'')                 
    300.8.................................  300.11................................  Free appropriate public         
                                                                                     education.                     
    300.9.................................  300.13................................  Include.                        
    300.10................................  300.9.................................  Intermediate educational unit.  
                                                                                     (Replaced by new definition    
                                                                                     from Pub. L. 105-17, entitled, 
                                                                                     ``Educational service          
                                                                                     agency.'')                     
    300.11................................  300.17................................  Local educational agency.       
    300.12................................  300.18................................  Native language.                
    300.13................................  300.19................................  Parent.                         
    300.14................................  300.20................................  Public agency.                  
    300.15................................  300.21................................  Qualified.                      
    300.16................................  300.22................................  Related service.                
    300.17................................  300.24................................  Special education.              
    300.18................................  300.27................................  Transition services.            
                                                                                                                    
                                                                                    Subpart B--State Plans and [LEA]
                                                                                      Applications (Retitled ``State
                                                                                         and Local Eligibility'')   
                                                                                                                    
                                                                                     State Plans--General (Retitled 
                                                                                     ``State Eligibility--General'')
                                                                                                                    
    300.110...............................  300.110...............................  Condition of assistance.        
    300.111...............................    ....................................  Contents of plans.              
                                                                                     State Plans--Contents (Retitled
                                                                                      ``State Eligibility--Specific 
                                                                                              Conditions'')         
                                                                                                                    
    300.121...............................  300.121...............................  Right to a free appropriate     
                                                                                     public education. (Retitled    
                                                                                     ``Free appropriate public      
                                                                                     education'' (FAPE).            
    300.122...............................  300.122...............................  Timelines and ages for free     
                                                                                     appropriate public education.  
                                                                                     (Retitled ``Exception to FAPE  
                                                                                     for certain ages.'')           
    300.123...............................  300.123...............................  Full educational opportunity    
                                                                                     goal (FEOG).                   
    300.124...............................  ......................................  [Reserved].                     
    300.125...............................  300.124...............................  FEOG--Timetable.                
    300.126...............................  ......................................  FEOG--Facilities, personnel, and
                                                                                     services.                      
    300.127...............................  ......................................  Priorities.                     
    300.128...............................  300.125...............................  Identification, location, and   
                                                                                     evaluation of children with    
                                                                                     disabilities.                  
    300.129...............................  300.127...............................  (Retitled ``child find.'')      
                                                                                     Confidentiality of personally  
                                                                                     identifiable information.      
    
    [[Page 55131]]
    
                                                                                                                    
    300.130...............................  300.128...............................  Individualized education        
                                                                                     programs.                      
    300.131...............................  300.129...............................  Procedural safeguards.          
    300.132...............................  300.130...............................  Least restrictive environment.  
    300.133...............................  300.126...............................  Protection in evaluation        
                                                                                     procedures. (Retitled          
                                                                                     ``Procedures for evaluation and
                                                                                     determination of               
                                                                                     eligibility.'')                
    300.134...............................  300.141...............................  Responsibility of [SEA] for all 
                                                                                     educational programs. (Retitled
                                                                                     ``SEA Responsibility for       
                                                                                     general supervision.'')        
    300.135...............................  ......................................  [Reserved].                     
    300.136...............................  300.143...............................  Implementation procedures--SEA. 
                                                                                     (Retitled ``SEA implementation 
                                                                                     of procedural safeguards.'')   
    300.137...............................  300.148...............................  Procedures for consulation.     
                                                                                     (Retitled ``Public             
                                                                                     participation.'')              
    300.138...............................  300.151...............................  Other Federal programs.         
    300.139...............................  300.135...............................  Comprehensive system of         
                                                                                     personnel development.         
    300.140...............................  300.133...............................  Private schools.                
    300.141...............................  300.145...............................  Recovery of funds for           
                                                                                     misclassified children.        
    300.142-143...........................  ......................................  [Reserved].                     
    300.144...............................  300.144...............................  Hearing on application.         
                                                                                     (Retitled ``Hearings relating  
                                                                                     to LEA eligibility.'')         
    300.145...............................  300.152...............................  Prohibition of commingling.     
    300.146...............................  300.137...............................  Annual evaluation. (Replaced by 
                                                                                     new section from P.L. 105-17,  
                                                                                     entitled, ``Performance goals  
                                                                                     and indicators.'')             
    300.147...............................  300.150...............................  State advisory panel.           
    300.148...............................  300.155...............................  Policies and procedures for use 
                                                                                     of Part B funds.               
    300.149...............................  300.156...............................  Description of use of Part B    
                                                                                     funds. (Retitled ``Annual      
                                                                                     description of use of Part B   
                                                                                     funds.'')                      
    300.150...............................  300.153...............................  State-level nonsupplanting.     
    300.151...............................  300.147...............................  Additional information if [SEA] 
                                                                                     provides direct services.      
    300.152...............................  300.142...............................  Interagency agreements.         
                                                                                     (Retitled ``Methods of ensuring
                                                                                     services.'')                   
    300.153...............................  300.136...............................  Personnel standards.            
    300.154...............................  300.132...............................  Transition of individuals from  
                                                                                     Part H to Part B. (Retitled    
                                                                                     ``Transition of children from  
                                                                                     Part C to preschool            
                                                                                     programs.'')                   
                                                                                                                    
                                                                                        LEA Applications--General   
                                                                                      (Retitled ``LEA Eligibility-- 
                                                                                                General'')          
                                                                                                                    
    300.180...............................  300.180...............................  Submission of application.      
                                                                                     (Retitled ``Condition of       
                                                                                     assistance.'')                 
    300.181...............................  ......................................  [Reserved].                     
    300.182...............................  300.184...............................  The excess cost requirement.    
                                                                                     (Retitled ``Excess cost        
                                                                                     requirement.'')                
    300.183...............................  300.185...............................  Meeting the excess cost         
                                                                                     requirement.                   
    300.184...............................  ......................................  Excess costs--computation of    
                                                                                     minimum amount.                
    300.185...............................  ......................................  Computation of excess costs--   
                                                                                     consolidated application.      
    300.186...............................  ......................................  Excess costs--limitation on use 
                                                                                     of Part B funds.               
    300.187-189...........................  300.186-189...........................  [Reserved].                     
    300.190...............................  300.190...............................  Consolidated applications.      
                                                                                     (Retitled ``Joint establishment
                                                                                     of eligibility.'')             
    300.191...............................  300.191...............................  [Reserved].                     
    300.192...............................  300.192...............................  State regulation of consolidated
                                                                                     applications. (Retitled        
                                                                                     ``Requirements for establishing
                                                                                     eligibility.'')                
    300.193...............................  300.197...............................  SEA approval; disapproval.      
                                                                                     (Retitled ``LEA and State      
                                                                                     agency compliance.'')          
    300.194...............................  300.197...............................  Withholding. (Retitled ``LEA and
                                                                                     State agency compliance.'')    
                                                                                                                    
                                                                                       LEA Applications--Contents   
                                                                                      (Retitled ``LEA Eligibility-- 
                                                                                          Specific Conditions'')    
                                                                                                                    
    300.220...............................  300.220...............................  Child identification.           
                                                                                     (Incorporated into a new       
                                                                                     requirement added by P.L. 105- 
                                                                                     17, entitled, ``Consistency    
                                                                                     with State policies.'')        
    300.221...............................  300.220...............................  Confidentiality of personally   
                                                                                     identififable information.     
                                                                                     (Incorporated into a new       
                                                                                     requirement added by P.L. 105- 
                                                                                     17, entitled, ``Consistency    
                                                                                     with State policies.'')        
    300.222...............................  300.220...............................  Full educational opportunity    
                                                                                     goal--timetable. (Incorporated 
                                                                                     into a new requirement added by
                                                                                     P.L. 105-17, entitled,         
                                                                                     ``Consistency with State       
                                                                                     policies.'')                   
    300.223...............................  ......................................  Facilities, personnel, and      
                                                                                     services.                      
    300.224...............................  300.221...............................  Personnel development.          
    300.225...............................  ......................................  Priorities.                     
    300.226...............................  ......................................  Parent involvement.             
    300.227...............................  300.220...............................  Participation in regular        
                                                                                     education programs.            
                                                                                     (Incorporated into a new       
                                                                                     requirement added by P.L. 105- 
                                                                                     17, entitled, ``Consistency    
                                                                                     with State policies.'')        
    300.228...............................  ......................................  [Reserved].                     
    300.229...............................  300.230...............................  Excess cost. (Incorporated into 
                                                                                     a new requirement added by P.L.
                                                                                     105-17, entitled, ``Use of     
                                                                                     amounts.'')                    
    300.230...............................  300.230...............................  Nonsupplanting. (Amended by P.L.
                                                                                     105-17, and incorporated into a
                                                                                     new requirement, entitled,     
                                                                                     ``Use of amounts.'')           
    300.231...............................  ......................................  Comparable services.            
    300.232-234...........................    ....................................  [Reserved].                     
    300.235...............................  300.220...............................  [IEPs]. (Incorporated into a new
                                                                                     requirement added by P.L. 105- 
                                                                                     17, entitled, ``Consistency    
                                                                                     with State policies.'')        
    
    [[Page 55132]]
    
                                                                                                                    
    300.236...............................    ....................................  [Reserved].                     
    300.237...............................  300.220...............................  Procedural safeguards.          
                                                                                     (Incorporated into a new       
                                                                                     requirement added by P.L. 105- 
                                                                                     17, entitled, ``Consistency    
                                                                                     with State policies.'')        
    300.238...............................    ....................................  Use of Part B funds.            
    300.239...............................    ....................................  [Reserved].                     
    300.240...............................  300.240...............................  Other requirements. (Comparable 
                                                                                     to a provision added by P.L.   
                                                                                     105-17, entitled, ``Information
                                                                                     for SEA.'')                    
                                                                                                                    
                                                                                      Application From Secretary of 
                                                                                          the Interior (Retitled    
                                                                                      ``Secretary of the Interior-- 
                                                                                              Eligibility'')        
                                                                                                                    
    300.260...............................  300.260...............................  Submission of application;      
                                                                                     approval. (Retitled,           
                                                                                     ``Submission of information.'')
    300.261...............................  300.261...............................  Public participation.           
    300.262...............................  300.262...............................  Use of Part B funds.            
    300.263...............................  300.267...............................  Applicable regulations.         
                                                                                                                    
                                                                                          Public Participation      
                                                                                                                    
    300.280...............................  300.280...............................  Public hearings before adopting 
                                                                                     a State plan. (Retitled        
                                                                                     ``Public hearings before       
                                                                                     adopting State policies and    
                                                                                     procedures.'')                 
    300.281...............................  300.281...............................  Notice.                         
    300.282...............................  300.282...............................  Opportunity to participate;     
                                                                                     comment period.                
    300.283...............................  300.283...............................  Review of public comments before
                                                                                     adopting plan. (Retitled       
                                                                                     ``Review public comments before
                                                                                     adopting policies and          
                                                                                     procedures.'')                 
    300.284...............................  300.284...............................  Publication and availability of 
                                                                                     approved plan. (Retitled       
                                                                                     ``Publication and availability 
                                                                                     of approved policies and       
                                                                                     procedures.'')                 
                                                                                                                    
                                                                                           Subpart C--Services      
                                                                                                                    
                                                                                         Free Appropriate Public    
                                                                                                Education           
                                                                                                                    
    300.300...............................  300.300...............................  Timelines for [FAPE]. (Retitled 
                                                                                     ``Provision of FAPE.'')        
    300.301...............................  300.301...............................  FAPE--methods and payments.     
    300.302...............................  300.302...............................  Residential placement.          
    300.303...............................  300.303...............................  Proper functioning of hearing   
                                                                                     aids.                          
    300.304...............................  300.304...............................  Full educational opportunity    
                                                                                     goal.                          
    300.305...............................  300.305...............................  Program options.                
    300.306...............................  300.306...............................  Nonacademic services.           
    300.307...............................  300.307...............................  Physical education.             
    300.308...............................  300.308...............................  Assistive technology.           
                                                                                                                    
                                                                                     Priorities in the Use of Part B
                                                                                                  Funds             
                                                                                                                    
    300.320...............................                                          Definitions of ``first priority 
                                                                                     children'' and ``second        
                                                                                     priority children.''           
    300.321...............................  ......................................  Priorities.                     
    300.322...............................  ......................................  [Reserved].                     
    300.323...............................  ......................................  Services to other children.     
    300.324...............................  ......................................  Application of local educational
                                                                                     agency to use funds for the    
                                                                                     second priority.               
                                                                                                                    
                                                                                        Individualized Education    
                                                                                                 Programs           
                                                                                                                    
    300.340...............................  300.340...............................  Definitions.                    
    300.341...............................  300.341...............................  State educational agency        
                                                                                     responsibility.                
    300.342...............................  300.342...............................  When individualized education   
                                                                                     programs must be in effect.    
    300.343...............................  300.343...............................  Meetings.                       
    300.344...............................  300.344...............................  Participants in meetings.       
                                                                                     (Retitled ``IEP Team.'')       
    300.345...............................  300.345...............................  Parent participant.             
    300.346...............................  300.347...............................  Content of individualized       
                                                                                     education program.             
    300.347...............................  300.348...............................  Agency responsibilities for     
                                                                                     transition services.           
    300.348...............................  300.349...............................  Private school placements by    
                                                                                     public agencies.               
    300.349...............................  300.350...............................  Children with disabilities in   
                                                                                     parochial or other private     
                                                                                     schools. (Retitled ``Children  
                                                                                     with disabilities in religious 
                                                                                     affiliated or other private    
                                                                                     schools.'')                    
    300.350...............................  300.351...............................  Individualized education        
                                                                                     program--accountability.       
                                                                                                                    
                                                                                    oi0Direct Service by the Sea    
                                                                                                                    
    300.360...............................  300.360...............................  Use of [LEA] allocation for     
                                                                                     direct services.               
    300.361...............................  300.361...............................  Nature and location of services.
    300.370...............................  300.370...............................  Use of State agency allocations.
    300.371...............................  ......................................  State matching.                 
    300.372...............................  300.372...............................  Applicability of nonsupplanting 
                                                                                     requirement.                   
                                                                                                                    
                                                                                    oi0Comprehensive System of      
                                                                                     Personnel Development          
                                                                                                                    
    300.380...............................  300.380...............................  General.                        
    300.381...............................  300.381...............................  Adequate supply of qualified    
                                                                                     personnel.                     
    300.382...............................  ......................................  Personnel preparation and       
                                                                                     continuing education.          
    300.383...............................  ......................................  Data system on personnel and    
                                                                                     personnel development.         
    
    [[Page 55133]]
    
                                                                                                                    
    300.384-387...........................  300.383-387...........................  [Reserved].                     
                                                                                                                    
                                                                                       Subpart D--Private Schools   
                                                                                                                    
                                                                                      Children with Disabilities in 
                                                                                        Private Schools Placed or   
                                                                                       Referred by Public Agencies  
                                                                                                                    
    300.400...............................  300.400...............................  Applicability of Secs. 300.400- 
                                                                                     300.402.                       
    300.401...............................  300.401...............................  Responsibility of State         
                                                                                     educational agency.            
    300.402...............................  300.402...............................  Implementation by State         
                                                                                     educational agency.            
    300.403...............................  300.403...............................  Placement of children by        
                                                                                     parents.                       
                                                                                                                    
                                                                                       Children With Disabilities   
                                                                                       Enrolled by Their Parents in 
                                                                                             Private Schools        
                                                                                                                    
    300.450...............................  300.450...............................  Definition of ``private school  
                                                                                     children with disabilities.''  
    300.451...............................  300.452...............................  [SEA] responsibility. (Retired  
                                                                                     ``Basic requirement-           
                                                                                     services'').                   
    300.452...............................  300.453...............................  [LEA] responsibility. (Revised  
                                                                                     based on P.L. 105-17, and      
                                                                                     retitled ``Expenditures.'')    
                                                                                                                    
                                                                                         Procedures for By-Pass     
                                                                                                                    
    300.480...............................  300.480...............................  By-pass--general.               
    300.481...............................  300.481...............................  Provisions for services under a 
                                                                                     by-pass.                       
    300.482...............................  300.482...............................  Notice of intent to implement a 
                                                                                     by-pass.                       
    300.483...............................  300.483...............................  Request to show cause.          
    300.484...............................  300.484...............................  Show cause hearing.             
    300.485...............................  300.485...............................  Decision.                       
    300.486...............................  300.486...............................  Filing requirements.            
    300.487...............................  300.487...............................  Judicial review.                
                                                                                    Subpart E--Procedural Safeguards
                                                                                                                    
                                                                                       Due Process Procedures for   
                                                                                           Parents and Children     
                                                                                                                    
    300.500...............................  3300.500..............................  Definitions of ``consent'',     
                                                                                     ``evaluation'', and            
                                                                                     ``personally identifiable''.   
                                                                                     (Combined Secs.  300.500 and   
                                                                                     300.501, and retitled ``General
                                                                                     responsibility of public       
                                                                                     agencies; definitions.'')      
    300.501...............................  300.500...............................  General responsibility of public
                                                                                     agencies. (Combined Secs.      
                                                                                     300.500 and 300.501, and       
                                                                                     retitled ``General             
                                                                                     responsibility of public       
                                                                                     agencies; definitions.'')      
    300.502...............................  300.501...............................  Opportunity to examine records. 
    300.503...............................  300.502...............................  Independent educational         
                                                                                     evaluation.                    
    300.504...............................  300.503...............................  Prior notice; parent consent.   
                                                                                     (Retitled ``Prior notice by the
                                                                                     public agency; content of      
                                                                                     notice.'')                     
    300.505...............................  300.503...............................  Content of notice. (Retitled    
                                                                                     ``Prior notice by the public   
                                                                                     agency; content of notice.'')  
    300.506...............................  300.507...............................  Impartial due process hearing.  
                                                                                     (Retitled ``Impartial due      
                                                                                     process hearing; parent notice;
                                                                                     disclosure.'')                 
    300.507...............................  300.508...............................  Impartial hearing officer.      
    300.508...............................  300.509...............................  Hearing rights.                 
    300.509...............................  300.510...............................  Hearing decision; appeal.       
                                                                                     (Combined Secs.  300.509 and   
                                                                                     300.510, and retitled          
                                                                                     ``Finality of decision; appeal;
                                                                                     impartial review.'')           
    300.510...............................  300.510...............................  Administrative appeal; impartial
                                                                                     review. (Combined Secs.        
                                                                                     300.509 and 300.510, and       
                                                                                     retitled ``Finality of         
                                                                                     decision; appeal; impartial    
                                                                                     review.'')                     
    300.511...............................  300.512...............................  Civil action.                   
    300.512...............................  300.511...............................  Timeless and convenience of     
                                                                                     hearings and reviews.          
    300.513...............................  300.514...............................  Child's status during           
                                                                                     proceedings.                   
    300.514...............................  300.515...............................  Surrogate parents.              
    300.515...............................  300.513...............................  Attorneys' fees.                
                                                                                                                    
                                                                                        Protection in Evaluation    
                                                                                           Procedures (Retitled     
                                                                                     ``Procedures for Evaluation and
                                                                                     Determination of Eligibility'')
                                                                                                                    
    300.530...............................  300.530...............................  General.                        
    300.531...............................  300.531...............................  Preplacement evaluation.        
                                                                                     (Retitled ``Initial            
                                                                                     evaluation.'')                 
    300.532...............................  300.532...............................  Evaluation procedures.          
    300.533...............................  300.534-35............................  Placement procedures. (Replaced 
                                                                                     by Sec.  300.534               
                                                                                     (``Determination of            
                                                                                     eligibility'') and Sec.        
                                                                                     300.535 (``Procedures for      
                                                                                     determining eligibility.'')    
    300.534...............................  300.536...............................  Reevaluation.                   
                                                                                                                    
                                                                                        Additional Procedures for   
                                                                                         Evaluating Children With   
                                                                                      Specific Learning Disabilities
                                                                                                                    
    300.540...............................  300.540...............................  Additional team members.        
    300.541...............................  300.541...............................  Criteria for determining the    
                                                                                     existence of a specific        
                                                                                     learning disability.           
    300.542...............................  300.542...............................  Observation.                    
    300.543...............................  300.543...............................  Written report.                 
                                                                                                                    
                                                                                      Least Restrictive Environment 
                                                                                                                    
    300.550...............................  300.550...............................  General.                        
    300.551...............................  300.551...............................  Continuum of alternative        
                                                                                     placements.                    
    300.552...............................  300.552...............................  Placements.                     
    300.553...............................  300.553...............................  Nonacademic settings.           
    300.554...............................  300.554...............................  Children in public or private   
                                                                                     institutions.                  
    
    [[Page 55134]]
    
                                                                                                                    
    300.555...............................  300.555...............................  Technical assistance and        
                                                                                     training activities.           
    300.556...............................  300.556...............................  Monitoring activities.          
                                                                                                                    
                                                                                      Confidentially of Information 
                                                                                                                    
    300.560...............................  300.560...............................  Definitions.                    
    300.561...............................  300.561...............................  Notice to parents.              
    300.562...............................  300.562...............................  Access rights.                  
    300.563...............................  300.563...............................  Record of access.               
    300.564...............................  300.564...............................  Records on more than one child. 
    300.565...............................  300.565...............................  List of types and location of   
                                                                                     information.                   
    300.566...............................  300.566...............................  Fees.                           
    300.567...............................  300.567...............................  Amendment of records at parent's
                                                                                     request.                       
    300.568...............................  300.568...............................  Opportunity for a hearing.      
    300.569...............................  300.569...............................  Result of hearing.              
    300.570...............................  300.570...............................  Hearing procedures.             
    300.571...............................  300.571...............................  Consent.                        
    300.572...............................  300.572...............................  Safeguards.                     
    300.573...............................  300.573...............................  Destruction of information.     
    300.574...............................  300.574...............................  Children's rights.              
    300.575...............................  300.575...............................  Enforcement.                    
    300.576...............................  300.577...............................  Department. (Retitled           
                                                                                     ``Department use of personally 
                                                                                     identifiable information.'')   
                                                                                                                    
                                                                                          Department Procedures     
                                                                                                                    
    300.580...............................  ......................................  [Reserved].                     
    300.581...............................  300.581...............................  Disapproval of a State plan.    
                                                                                     (Combined Secs.  300.581 and   
                                                                                     300.582, and retitled ``Notice 
                                                                                     and hearing before determining 
                                                                                     that a State is not            
                                                                                     eligible.'')                   
    300.582...............................  300.581...............................  Content of notice. (Combined    
                                                                                     Secs.  300.581 and 300.582, and
                                                                                     retitled ``Notice and hearing  
                                                                                     before determining that a State
                                                                                     is not eligible.'')            
    300.583...............................  300.582...............................  Hearing Official or Panel.      
    300.584...............................  300.583...............................  Hearing procedures.             
    300.585...............................  300.584...............................  Initial decision; final         
                                                                                     decision.                      
    300.586...............................  300.585...............................  Filing requirements.            
    300.587...............................  300.586...............................  Judicial review.                
    300.588...............................  ......................................  [Reserved].                     
    300.589...............................  300.589...............................  Waiver of requirement regarding 
                                                                                     supplementing and supplanting  
                                                                                     with Part B funds.             
                                                                                                                    
                                                                                     Subpart F--State Administration
                                                                                                                    
                                                                                                 General            
                                                                                                                    
    300.600...............................  300.600...............................  Responsibility for all          
                                                                                     educational programs.          
    300.601...............................  300.601...............................  Relation of Part B to other     
                                                                                     Federal programs.              
                                                                                                                    
                                                                                              Use of Funds          
                                                                                                                    
    300.620...............................  300.620...............................  Federal funds for State         
                                                                                     administration. (Retitled ``Use
                                                                                     of funds for State             
                                                                                     administration.'')             
    300.621...............................  300.621...............................  Allowable costs.                
                                                                                                                    
                                                                                          State Advisory Panel      
                                                                                                                    
    300.650...............................  300.650...............................  Establishment (Retitled         
                                                                                     ``Establishment of advisory    
                                                                                     panels.'')                     
    300.6651..............................  300.651...............................  Membership.                     
    300.652...............................  300.652...............................  Advisory panel functions.       
    300.653...............................  300.653...............................  Advisory panel procedures.      
                                                                                                                    
                                                                                       State Complaint Procedures   
                                                                                                                    
    300.660...............................  300.660...............................  Adoption of State complaint     
                                                                                     procedures.                    
    300.661...............................  300.661...............................  Minimum State complaint         
                                                                                     procedures.                    
    300.662...............................  300.662...............................  Filing a complaint.             
                                                                                                                    
                                                                                     Subpart G--Allocation of Funds;
                                                                                                 Reports            
                                                                                                                    
                                                                                               Allocations          
                                                                                                                    
    300.700...............................  300.700...............................  Special definition of the term  
                                                                                     State.                         
    300.701...............................  300.701...............................  State entitlement; formula.     
                                                                                     (Retitled ``Grants to          
                                                                                     States.'')                     
    300.702...............................  300.704...............................  [Reserved].                     
    300.703...............................  300.705...............................  [Reserved].                     
    300.704...............................  300.708...............................  Hold harmless provision.        
                                                                                     (Comparable, in part, to Sec.  
                                                                                     300.708 (``Limitations'').     
    300.705...............................  300.710...............................  Allocation for State in which by-
                                                                                     pass is implemented for private
                                                                                     school children with           
                                                                                     disabilities.                  
    300.706...............................  300.703...............................  Within-State distribution:      
                                                                                     Fiscal Year 1979 and after.    
                                                                                     (Comparable, in part, to Sec.  
                                                                                     300.703 (``Allocations to      
                                                                                     States.''), which sets out the 
                                                                                     formula added by Public Law 105-
                                                                                     17).                           
    300.707...............................  300.711-712...........................  Local educational agency        
                                                                                     entitlement; formula. (Retitled
                                                                                     ``Subgrants to local           
                                                                                     educational agencies'')        
                                                                                     (Retitled ``Allocation to local
                                                                                     educational agencies.'')       
    
    [[Page 55135]]
    
                                                                                                                    
    300.708...............................  300.714...............................  Reallocation of [LEA] funds.    
    300.709...............................  300.715...............................  Payments to the Secretary of the
                                                                                     Interior for the education of  
                                                                                     Indian children.               
    300.710...............................  300.716...............................  Payments to the Secretary of the
                                                                                     Interior for Indian tribes or  
                                                                                     tribal organizations. (Retitled
                                                                                     ``Payments for education and   
                                                                                     services for Indian children   
                                                                                     with disabilities aged 3       
                                                                                     through 5.'')                  
    300.711...............................  300.716...............................  Entitlements to jurisdictions.  
                                                                                     (Replaced by Secs.  300.717    
                                                                                     (``Outlying areas and freely   
                                                                                     associated States.'') and      
                                                                                     300.718 (``Outlying area--     
                                                                                     definition.'')                 
                                                                                                                    
                                                                                                 Reports            
                                                                                                                    
    300.750...............................  300.750...............................  Annual report of children       
                                                                                     served--report requirement.    
    300.751...............................  300.751...............................  Annual report of children       
                                                                                     served--information required in
                                                                                     the report.                    
    300.752...............................  300.752...............................  Annual report of children       
                                                                                     served--certification.         
    300.753...............................  300.753...............................  Annual report of children       
                                                                                     served--criteria for counting  
                                                                                     children.                      
    300.754...............................  300.754...............................  Annual report of children       
                                                                                     served--other responsibilities 
                                                                                     of [SEA].                      
    ----------------------------------------------------------------------------------------------------------------
    \1\ The purpose of this table is to assist each reader to find where a given section number in the current      
      regulations is located in this NPRM. The table does not include (1) any new regulatory provisions that have   
      been added as a result of the IDEA Amendments of 1997, or (2) any other new area on which the Secretary is    
      proposing to regulate.                                                                                        
    
    [FR Doc. 97-28006 Filed 10-22-97; 8:45 am]
    BILLING CODE 4000-01-P
    
    
    

Document Information

Published:
10/22/1997
Department:
Education Department
Entry Type:
Proposed Rule
Action:
Notice of proposed rulemaking.
Document Number:
97-28006
Dates:
Comments must be received by the Department on or before January 20, 1998.
Pages:
55026-55135 (110 pages)
RINs:
1820-AB40: Assistance for Education of All Children With Disabilities
RIN Links:
https://www.federalregister.gov/regulations/1820-AB40/assistance-for-education-of-all-children-with-disabilities
PDF File:
97-28006.pdf
CFR: (409)
34 CFR 300.7)
34 CFR 300.230(a)
34 CFR 300.347(a)(3)
34 CFR 300.360(a)
34 CFR 300.507(a)
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