E7-24353. Provision of Early Intervention and Special Education Services to Eligible DoD Dependents

AGENCY:

Department of Defense.

ACTION:

Final rule.

SUMMARY:

The Department of Defense (DoD) school systems [DoD Dependents Schools (DoDDS) and the Defense Dependents Elementary and Secondary Schools (DDESS)] are required by law to provide services and safeguards to children with disabilities consistent with the “Individuals With Disabilities Education Act” (IDEA). This will bring the DoDDS and DDESS under a single rule codified at 32 CFR part 57. The rule integrates previous DoD policy memoranda.

DATES:

Effective Date: This rule is effective December 19, 2007.

FOR FURTHER INFORMATION CONTACT:

Dr. Rebecca Posante, 703-602-4949 x114.

SUPPLEMENTARY INFORMATION:

On June 10, 2004 (69 FR 32662), the Department of Defense published an interim final rule. No comments were received. The final rule had not been published sooner due to legal constraints. This rule adopts the rule as published.

See 20 U.S.C. 927(c) (concerning DoDDS) and 10 U.S.C. 2164(f) (concerning DDESS). This final rule updates and amends the DoD implementation of the IDEA within the DoD school systems, as follows: Requires the DoD Education Activity to report annually on the rate special education students (a) participate in system-wide or alternative testing, (b) are disciplined, (c) are suspended, or (d) are expelled; and requires the DoD Education Activity to compare these rates with students who are not disabled; clarifies requirements for three year re-evaluation of special education students; requires individualized education programs (IEPs) to consider special circumstances in the IEP; strengthens the requirement for the school system notice to parents about change of placement or refusal for change of placement; strengthens the protections for students with a disability when facing disciplinary action that might result in suspension or expulsion; requires the schools to provide special education in an interim alternative educational setting for special education students who have been suspended or expelled from school; strengthens requirements for documenting behavioral intervention when disciplining special education students; clarifies the students who must be treated as students with a disability when considering disciplinary action that may result in suspension or expulsion; allows the use of paraprofessionals and assistants (e.g., Certified Occupational Therapy Assistants, Physical Therapy Assistants) to assist in the provision of early intervention services and special education; requires the schools to advise students of their rights one year prior to the age of majority; sets the age of majority for students in the DoDDS as 18, and for students in the DDESS as the age of majority for the State in which the DDESS is located; consolidates the former National Advisory Panel and the Domestic Advisory Panel into one and requires the majority of advisory panel members be persons with disabilities or the parents of children with disabilities.

Executive Order 12866, “Regulatory Planning and Review”

It has been determined that 32 CFR part 57 is not a significant regulatory action. The rule does not:

(1) Have an annual effect to the economy of $100 million or more or adversely affect in a material way the economy; a section of the economy; productivity; competition; jobs; the environment; public health or safety; or State, local, or tribal governments or communities;

(2) Create a serious inconsistency or otherwise interfere with an action taken or planned by another Agency;

(3) Materially alter the budgetary impact of entitlements, grants, user fees, or loan programs, or the rights and obligations of recipients thereof; or

(4) Raise novel legal or policy issues arising out of legal mandates, the President's priorities, or the principles set forth in this Executive Order.

Unfunded Mandates Reform Act (Sec. 202, Pub. L. 104-4)

It has been certified that this rule does not contain a Federal mandate that may result in the expenditure by State, local and tribal governments, in aggregate, or by the private sector, of $100 million or more in any one year.

Public Law 96-354, “Regulatory Flexibility Act” (5 U.S.C. 601)

It has been certified that this rule is not subject to the Regulatory Flexibility Act (5 U.S.C. 601) because it would not, if promulgated, have a significant economic impact on a substantial number of small entities. This rule pertains only to the provision of special education and early intervention by Department of Defense entities not by any other entity.

Public Law 96-511, “Paperwork Reduction Act” (44 U.S.C. Chapter 35)

It has been certified that this rule does impose reporting or recordkeeping requirements under the Paperwork Reduction Act of 1995.

Federalism (Executive Order 13132)

It has been certified that this rule does not have federalism implications, as set forth in Executive Order 13132. This rule does not have substantial direct effects on:

(1) The States;

(2) The relationship between the National Government and the States; or

(3) The distribution of power and responsibilities among the various levels of government.

List of Subjects in 32 CFR Part 57

• Education of individuals with disabilities
• Elementary and secondary education
• Government employees
• Military personnel

PART 57—PROVISION OF EARLY INTERVENTION AND SPECIAL EDUCATION SERVICES TO ELIGIBLE DOD DEPENDENTS

Accordingly, the interim rule revising 32 CFR part 57 published at 69 FR 32662 on June 10, 2004, is adopted as a final rule without change.

Dated: December 11, 2007.

L.M. Bynum,

Alternate OSD Federal Register Liaison Officer, DoD.