[Federal Register Volume 64, Number 48 (Friday, March 12, 1999)]
[Rules and Regulations]
[Pages 12406-12672]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5754]
[[Page 12405]]
_______________________________________________________________________
Part II
Department of Education
_______________________________________________________________________
34 CFR Parts 300 and 303
Assistance to States for the Education of Children With Disabilities
and the Early Intervention Program for Infants and Toddlers With
Disabilities; Final Regulations
Federal Register / Vol. 64, No. 48 / Friday, March 12, 1999 / Rules
and Regulations
[[Page 12406]]
DEPARTMENT OF EDUCATION
34 CFR Parts 300 and 303
RIN 1820-AB40
Assistance to States for the Education of Children With
Disabilities and the Early Intervention Program for Infants and
Toddlers With Disabilities
AGENCY: Office of Special Education and Rehabilitative Services,
Department of Education.
ACTION: Final regulations.
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SUMMARY: The Secretary issues final regulations for the Assistance to
States for Education of Children with Disabilities program under Part B
of the Individuals with Disabilities Education Act (IDEA; Part B) and
the Early Intervention Program for Infants and Toddlers with
Disabilities under Part C of the Act (Part C). These regulations are
needed to implement changes made to Part B by the IDEA Amendments of
1997; make other changes to the part B regulations based on relevant,
longstanding policy guidance; and revise the requirements on State
complaint procedures under both the Part B and Part C programs.
DATES: These regulations take effect on May 11, 1999. However,
compliance with these regulations will not be required until the date
the State receives FY 1999 funding (expected to be available for
obligation to States on July 1, 1999) under the program or October 1,
1999, whichever is earlier. Affected parties do not have to comply with
the information collection requirements contained in the regulations
listed under the Paperwork Reduction Act of 1995 section of this
preamble until the Department publishes in the Federal Register the
control number assigned by the Office of Management and Budget (OMB) to
these information collection requirements. Publication of the control
numbers notifies the public that OMB has approved these information
collection requirements under the Paperwork Reduction Act of 1995.
FOR FURTHER INFORMATION CONTACT: Thomas Irvin 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 Mincey, Director of the Alternate Formats
Center. Telephone: (202) 205-8113.
SUPPLEMENTARY INFORMATION: On October 22, 1997, the Secretary published
a notice of proposed rulemaking (NPRM) in the Federal Register (62 FR
55026) to amend the regulations governing the Assistance to States for
Education of Children with Disabilities program (part 300), the
Preschool Grants for Children with Disabilities program (part 301), and
the Early Intervention Program for Infants and Toddlers with
Disabilities (part 303). A key purpose of the NPRM was to implement
changes made by the IDEA Amendments of 1997 (Pub. L. 105-17).
Since that time, the Department has published final regulations for
both the Preschool Grants program (63 FR 29928, June 1, 1998) and the
Early Intervention program for Infants and Toddlers with Disabilities
(63 FR 18297, April 14, 1998), to incorporate the requirements added to
those programs by Pub. L. 105-17. On April 14, 1998, a document was
published in the Federal Register inviting comment on whether the
regulations for the Early Intervention program for Infants and Toddlers
with Disabilities should be further amended (63 FR 18297). (A
subsequent document reopening the comment period was published on
August 14, 1998 (63 FR 43866)).
The final regulations in this publication are needed to conform the
existing regulations under Part B of the Act to the new statutory
requirements added by Pub. L. 105-17, including (1) amending
requirements under prior law related to areas such as State and local
eligibility, evaluation, and individualized education programs (IEPs),
and (2) incorporating new requirements in the Act (e.g., those relating
to discipline, performance goals and indicators, participation of
children with disabilities in State and district-wide assessments,
procedural safeguards notice, and mediation).
The regulations have also been amended to incorporate relevant
longstanding interpretations of the Act that have been addressed in
nonregulatory guidance in the past and are needed to ensure a more
meaningful implementation of the Act and its regulations for children
with disabilities, parents, and public agencies. These interpretations
are based on the statutory provisions of the IDEA that were in effect
prior to the IDEA Amendments of 1997 and that were not changed by those
Amendments. Examples of provisions of the regulations that incorporate
prior Department interpretations of the statute include:
Section 300.7(c)(9)--recognizing that some children with attention
deficit disorder (ADD) may be identified under the category of other
health impairment;
Section 300.19--recognizing that foster parents may, under certain
circumstances and if permitted under State law, qualify as a ``parent';
Section 300.121(c)--recognizing that if a child's third birthday is
in the summer, the child's IEP team determines the date when services
begin under the child's IEP or IFSP. (The team must develop the IEP or
IFSP by the child's third birthday.);
Section 300.122(a)(3)--recognizing that graduation with a regular
high school diploma ends the child's eligibility under Part B;
Section 300.309--recognizing that extended school year services
must be provided if necessary for the provision of a free appropriate
public education to the child; and
Section 300.519--identifying what constitutes a change of placement
for disciplinary purposes under these regulations.
In addition, changes have been made to the requirements on State
complaint procedures in the regulations for Part B (Secs. 300.660-
300.662), and conforming changes have been made in the Part C
regulations (Secs. 303.510-303.512).
Analysis of Comments and Changes
In response to the Secretary's invitation to comment on the NPRM
published in the Federal Register on October 22, 1997 (62 FR 55026),
about 6,000 individuals, public agencies, and organizations submitted
written or oral comments. An analysis of the public comments received,
including a description of the changes made in the proposed regulations
since publication of the NPRM, is published as Attachment 1 to these
final regulations. The perspectives of individuals and groups of
parents, teachers, related service providers, State and local
officials, individuals with disabilities and members of Congress were
very important in helping to identify where changes were necessary in
the proposed regulations, and in formulating many of those changes. The
detailed, thoughtful comments of so many individuals and organizations
clearly demonstrated a high level of commitment to making sure that the
IDEA and its regulations make a real difference in the day-to-day
education of our children. In light of the comments received, a number
of significant changes are reflected in these final regulations.
Effective Date of These Regulations
These regulations take effect on May 11, 1999. As these regulations
were not in effect at the time Federal fiscal year
[[Page 12407]]
(FY) 1998 funds (funds for use during school year 1998-99) became
available for obligation to States, compliance with the requirements of
these regulations, that are not statutory requirements or provisions of
pre-existing regulations, will not be mandatory for this grant year.
When either the FY 1998 funds that are unobligated by States and school
districts become carryover funds (October 1, 1999) or, if earlier, the
State receives FY 1999 funding (expected to be available for obligation
to States July 1, 1999) compliance with these final regulations is
required. This will enable all parties to become familiar with the new
regulations without requiring changes that could interrupt school or
program operations in the middle of a grant year. However, States and
school districts may adopt and use these regulations when they are
effective, and are encouraged, to the greatest extent possible, to
start to implement them as soon as possible during this school year. In
any case, the statutory requirements of the Individuals with
Disabilities Education Act Amendments of 1997 (IDEA Amendments of 1997)
are in effect and must be complied with throughout the 1998-99 school
year. In addition, States and school districts must comply with all
requirements of the Part 300 regulations that were in effect at the
beginning of this school year unless inconsistent with the IDEA
Amendments of 1997 or these final regulations. Applications for grants
for FY 1999 funds must be consistent with the requirements of these
final regulations.
Most of the provisions of the IDEA Amendments of 1997 relating to
Parts B and C of the Act have been in effect since enactment, June 4,
1997, with a few provisions, such as the new Part B provisions
concerning individualized education programs and the comprehensive
system of personnel development, taking effect on July 1, 1998.
Therefore, States and school districts already are familiar with the
statutory provisions of the IDEA Amendments of 1997 to which they must
comply.
Major Changes in the Regulations
The following is a summary of the major substantive changes from
the NPRM in these final regulations:
1. General Changes
All notes in the NPRM related to the sections or subparts
covered in these final regulations have been removed. The substance of
any note that should be required for proper implementation of the Act
has been added to the text of these final regulations. Information in
notes considered to be directly relevant to the ``Notice of
Interpretation'' on IEP requirements has been added to the text of that
notice in Appendix A to these final regulations. The substance of any
note considered to provide clarifying information or useful guidance
has been incorporated into the discussion of the applicable comments in
the ``Analysis of Comments and Changes'' (see Attachment 1 to these
final regulations). All other notes have been deleted.
Appendix C in the NPRM (``Notice of Interpretation on
IEPs) has been redesignated as ``Appendix A'' in these final
regulations; and a new Appendix B--Index to IDEA Part B Regulations has
been added.
Three attachments have also been added: Attachment 1--
Analysis of Comments and Changes; Attachment 2--Final Regulatory
Flexibility Analysis; and Attachment 3--Table showing ``Disposition of
NPRM Notes in Final Part 300 and 303 Regulations.'' However, these
attachments will not be codified in the Code of Federal Regulations.
2. Changes in Subpart A--General
Proposed Sec. 300.2 (Applicability of this part to State,
local, and private agencies) has been revised to include ``public
charter schools that are not otherwise included as local educational
agencies (LEAs) or educational service agencies (ESAs) and are not a
school of an LEA or ESA'' and to specify that the rules of Part 300
apply to all public agencies in the State providing special education
and related services.
Consistent with the general decision to not use notes in
these final regulations, proposed Note 1 immediately preceding
Sec. 300.4 in the NPRM, (which included a list of terms defined in
specific subparts and sections of the regulations) has been deleted and
the terms included as part of an index to these regulations (see
Appendix B).
The proposed definition of ``child with a disability''
(Sec. 300.7(a)) has been revised to clarify that if a child with a
disability needs only a related service and not special education, the
child is not eligible under this part; but if the related service is
considered to be special education under State standards, the child
would be eligible.
The proposed definition of ``other health impairment''
(``OHI''), at Sec. 300.7(c)(9), has been amended to (1) add ``attention
deficit disorder'' (ADD) and ``attention deficit hyperactivity
disorder'' (ADHD) to the list of conditions that could render a child
eligible under OHI, and (2) clarify that, with respect to children with
ADD/ADHD, the phrase ``limited strength, vitality, or alertness''
includes ``a child's heightened alertness to environmental stimuli that
results in limited alertness with respect to the educational
environment.''
The proposed definition of ``Day'' (Sec. 300.9) has been
retitled ``Day; business day; school day,'' and definitions of
``business day'' and ``school day'' have been added.
The proposed definition of ``educational service agency''
(Sec. 300.10) has been revised to clarify that the term ``[i]ncludes
entities that meet the definition of ``intermediate educational unit''
in section 602(23) of IDEA as in effect prior to June 4, 1997.''
The proposed definition of ``general curriculum'' in
Sec. 300.12 of the NPRM and the explanatory note following that section
have been deleted. The term is explained where it is used in
Sec. 300.347 and in Appendix A regarding IEP requirements.
The proposed definition of ``local educational agency''
(Sec. 300.18) has been amended to clarify, consistent with new
statutory language concerning public charter schools, that the term
includes public charter schools that are established as an LEA under
State law.
The proposed definition of ``native language''
(Sec. 300.19) has been amended to specify that (1) in all direct
contact with a child (including evaluation of the child), the native
language is the language normally used by the child in the home or
learning environment, and (2) for an individual with deafness or
blindness, or with no written language, the mode of communication is
that normally used by the individual (such as sign language, braille,
or oral communication).
The proposed definition of ``parent'' has been amended to
(1) add language clarifying that the term means a natural or adoptive
parent of a child and a person acting in the place of a parent (such as
a grandparent or stepparent with whom the child lives, or a person who
is legally responsible for the child's welfare), and (2) permit States
in certain circumstances to use foster parents as parents under the Act
unless prohibited by State law.
The proposed definition of ``public agency'' (Sec. 300.22)
has been amended to add to the list of examples of a public agency
``public charter schools that are not otherwise included as LEAs or
ESAs and are not a school of an LEA or ESA'', consistent with new
statutory language concerning public charter schools.
The proposed definition of ``parent counseling and
training,'' under the definition of ``related services,''
(Sec. 300.24(b)(7)) has been amended to
[[Page 12408]]
add that the term also means ``helping parents to acquire the necessary
skills that will allow them to support the implementation of their
child's IEP or IFSP.''
The proposed definition of ``special education''
(Sec. 300.26) has been amended to add ``travel training'' as a special
education service and to include a definition of the term.
3. Changes in Subpart B--State and Local Eligibility
State Eligibility
Proposed Sec. 300.110 (Condition of assistance) has been
amended to more explicitly state what is required for compliance with
the State eligibility requirements.
Proposed Sec. 300.121 (FAPE) has been amended to specify
(1) requirements for providing FAPE for children with disabilities
beginning at age 3; (2) that services need not be provided during
periods of removal under Sec. 300.520(a)(1) to a child with a
disability who has been removed from his or her current placement for
10 school days or less in that school year, if services are not
provided to a child without disabiliities who has been similarly
removed; (3) the standards that are used to determine appropriate
services for children with disabilities who have been removed from
their current placement for more than 10 school days in a school year;
(4) that LEAs must ensure that FAPE is available to any child with a
disability who needs special education and related services, even
though the child is advancing from grade to grade; and (5) that the
determination that a child who is advancing from grade to grade is
eligible under this part must be made on an individual basis by the
group within the LEA responsible for making eligibility determinations.
Proposed Sec. 300.122 (Exception to FAPE for certain ages)
has been amended to (1) specify situations in which the exception to
FAPE for students with disabilities in adult prisons does not apply,
and (2) make clear that graduation from high school with a regular
diploma is a change in placement requiring notice in accordance with
Sec. 300.503. (A related change to Sec. 300.534(c) makes clear that a
reevaluation is not required for graduation with a regular high school
diploma or termination of eligibility for exceeding the age eligibility
for FAPE under State law.)
Proposed Sec. 300.125 (Child find) has been revised to (1)
clarify that the child find requirements apply to highly mobile
children (e.g., migrant and homeless children), and to children who are
suspected of being a child with a disability under this part, even
though they are advancing from grade to grade, and (2) add needed
clarifications of requirements relating to child find for children from
birth through age 2 when the SEA and lead agency for the Part C program
are different.
Proposed Sec. 300.136 (Personnel standards) has been
amended as follows:
(1) The proposed definition of ``profession or discipline'' in
Sec. 300.136(a)(3) has been revised to clarify that the term ``specific
occupational category'' is not limited to traditional categories.
(2) The policies and procedures in proposed Sec. 300.136(b) have
been expanded to provide that (A) each State may determine the specific
occupational categories required in the State and revise or expand them
as needed; (B) nothing in these regulations requires a State to
establish a specific training standard (e.g., a masters degree); and
(C) a State with only one entry-level academic degree for employment of
personnel in a specific profession or discipline may modify that
standard, as necessary, to ensure the provision of FAPE to all eligible
children.
(3) Proposed Sec. 300.136(g) (State policy to address shortage of
personnel) has been amended by adding provisions that (A) if a State
has reached its established date for a specific profession or
discipline, it may still exercise the option in redesignated
Sec. 300.136(g)(1); and (B) each State must have a mechanism for
serving children with disabilities if instructional needs exceed
available (qualified) personnel, including addressing those shortages
in its comprehensive system of personnel development if the shortages
continue.
Proposed Sec. 300.138 (Participation in assessments) has
been amended to require appropriate modifications in the administration
of the assessments, if necessary.
Proposed Sec. 300.142 (Methods of ensuring services) has
been amended as follows:
(1) Proposed Sec. 300.142(b) (Obligation of noneducational public
agencies) has been revised to specify that those agencies may not
disqualify an eligible service for Medicaid reimbursement because the
service is provided in an educational context.
(2) Proposed Sec. 300.142(b)(2) (Reimbursement for services by
noneducational public agency) has been revised to require that an LEA
must provide services in a timely manner if a public noneducational
agency fails to provide or pay for the services.
(3) Proposed Sec. 300.142(e) has been added to make clear that a
public agency may use a child's public insurance to provide or pay for
services required under Part B, with certain limitations. The public
agency (A) may not require parents to sign up for public insurance in
order for the child to receive FAPE, (B) may not require parents to
incur out-of-pocket expenses in order to file the claim for services
under Part B, and (C) may not use the child's benefits under a public
insurance program if that use would decrease available lifetime
coverage or any other insured benefit, result in the family paying for
services that would have been covered by the public insurance and are
required for the child outside of the time the child is in school,
increase premiums or lead to discontinuation of services or risk loss
of eligibility for home and community-based waivers due to aggregate
health-related expenditures.
(4) The proposed provisions on children covered by private
insurance have been redesignated as Sec. 300.142(f), and revised to
provide that a public agency (A) may access a parent's private
insurance proceeds only if the parent provides informed consent, and
(B) must obtain consent each time it proposes to access those proceeds,
and inform the parents that their refusal to permit such access does
not relieve the public agency of its responsibility to provide all
required services at no cost to the parents.
(5) A new Sec. 300.142(g) has been added to permit the use of part
B funds to ensure FAPE for (A) the cost of required services under
these regulations if the parents refuse consent to use public or
private insurance, and (B) the costs of using the parents' insurance,
such as paying deductible or co-pay amounts.
(6) Proposed Sec. 300.142(f) (Proceeds from public or private
insurance) has been redesignated as paragraph (h), and revised to
clarify that (A) the insurance proceeds received by a public agency do
not have to be returned to the Department or dedicated to the part B
program; and (B) funds expended by a public agency from reimbursements
of Federal funds will not be considered State or local funds for
purposes of State or local maintenance of effort.
(7) A new Sec. 300.142(i) has been added to specify that nothing in
Part B should be construed to alter the requirements imposed on a State
medicaid agency, or any other agency administering a public insurance
program by Federal statute, regulations or policy under Title XIX or
Title XXI of the Social Security Act, or any other public insurance
program.
[[Page 12409]]
Proposed Sec. 300.148 (Public participation) has been
amended to clarify that a State will be considered to be in compliance
with this section if the State has subjected the policy or procedure to
a public participation process that is required by the State for other
purposes and is comparable to and consistent with the requirements of
Secs. 300.280-300.284.
Proposed Sec. 300.154 (Maintenance of State financial
support) has been amended to clarify that maintenance of State
financial support can be demonstrated on either a total or per-capita
basis.
LEA Eligibility--Specific Conditions
Proposed Sec. 300.231 (Maintenance of effort) has been
amended to set out the standard for meeting the maintenance of effort
requirement.
Proposed Sec. 300.232 (Exception to maintenance of effort)
has been amended to specify that the exception related to voluntary
retirement or resignation of personnel must be in full conformity with
existing school board policies, any applicable collective bargaining
agreement, and applicable State statutes.
Proposed Sec. 300.234 (Schoolwide programs under title I
of the ESEA) has been amended to make clear that an LEA that uses Part
B funds in schoolwide program schools must ensure that children with
disabilities in those schools receive services in accordance with a
properly developed IEP and are afforded all applicable rights and
services guaranteed under the IDEA.
4. Changes in Subpart C--Services
Free Appropriate Public Education
Proposed Sec. 300.300 (Provision of FAPE) has been amended
to specify that the State must ensure that the child find requirements
of Sec. 300.125 are implemented by public agencies throughout the
State. Proposed Sec. 300.300 also has been amended to specify that (1)
the services provided to the child under this part address all of the
child's identified special education and related services needs, and
(2) are based on the child's identified needs and not the child's
disability category.
Proposed Sec. 300.301 (FAPE--methods and payments) has
been amended to add a provision requiring that the State must ensure
that there is no delay in implementing a child's IEP, including any
case in which the payment source for providing or paying for the
special education and related services to the child is being
determined.
Proposed Sec. 300.308 (Assistive technology) has been
amended to clarify that, on a case-by-case basis, the use of school-
purchased assistive technology devices in a child's home or in other
settings is required if the child's IEP team determines that the child
needs access to those devices in order to receive FAPE.
Proposed Sec. 300.309 (Extended school year (ESY)
services) has been amended to specify that (1) ESY services must be
provided only if a child's IEP team determines, on an individual basis,
that the services are necessary for the provision of FAPE to the child,
and (2) an LEA may not limit ESY services to particular categories of
disability, or unilaterally limit the type, amount, or duration of
those services.
A new Sec. 300.312 (Children with disabilities in public
charter schools) has been added to (1) specify that these children and
their parents retain all rights under these regulations, and that
compliance with part B is required regardless of whether a public
charter school receives Part B funds; and (2) address the
responsibilities of the following: public charter schools that are
LEAs; LEAs if the charter school is a school in the LEA; and the SEA if
the charter school is not an LEA or a school of an LEA.
A new Sec. 300.313 (Children experiencing developmental
delays) has been added to (1) clarify the circumstances under which the
designation ``developmental delay'' may be used by a State or an LEA in
the State; (2) permit a State or LEA that elects to use that term to
also use one or more of the disability categories described in
Sec. 300.7 for any child aged 3 through 9 who has been determined to
have a disability and who, by reason thereof, needs special education;
and (3) permit a State to adopt a common definition of developmental
delay under Parts B and C of the Act.
Individualized Education Programs (IEPs)
Proposed Sec. 300.341 (retitled ``Responsibility of SEA
and other public agencies for IEPs) has been revised to (1) consistent
with provisions regarding parentally-placed children with disabilities
in religious or other private schools (see changes to Subpart D), and
(2) to clarify that the section also applies to the SEA if it provides
direct services to children with disabilities as well as other public
agencies that provide special education either directly, by contract,
or through other means.
Proposed Sec. 300.342(b) has been revised to provide that
the child's IEP must be accessible to each of the child's teachers and
service providers and that teacher and service provider with
responsibility for its implementation be informed of his or her
specific responsibilities under the IEP and of the specific
accommodations, modifications, and supports that must be provided for
the child under that IEP.
Proposed Sec. 300.342(d) has been revised to state that
all IEPs developed, reviewed, or revised on or after July 1, 1998 must
meet the requirements of Secs. 300.340-300.350.
Proposed Sec. 300.343 (IEP meetings) has been revised to
clarify that special education and related services must be available
to the child within a reasonable period of time following receipt of
parent consent to an initial evaluation.
Proposed Sec. 300.344 (IEP Team) has been amended to (1)
clarify that the determination of knowledge or special expertise of
``other individuals'' under Sec. 300.344(a)(6) is made by the party who
has invited the individual to be a member of the IEP team; and (2)
permit a public agency to designate another public agency member of the
IEP team to also serve as the agency representative, if the criteria in
Sec. 300.344(a)(4) are satisfied.
Proposed Sec. 300.345 (Parent participation) has been
revised to clarify that (1) the public agency's notice to parents about
the IEP meeting must inform them about the ability of either party to
invite individuals with knowledge or special expertise to the meeting,
consistent with Sec. 300.344(a)(6) and (c); and (2) the agency must
give the parents a copy of their child's IEP.
Proposed Sec. 300.346 (Development, review, and revision
of IEP) has been revised to clarify that, in developing each child's
IEP, the IEP team also must consider ``as appropriate, the results of
the child's performance on any general State or district-wide
assessment programs.
Proposed Sec. 300.347 (Content of IEP) has been amended to
(1) clarify that ``general curriculum'' is the same curriculum as for
nondisabled children, and (2) delete the requirement that, if the IEP
team determines that services are not needed in one or more of the
areas specified in the definition of transition services (Sec. 300.29),
the IEP must include a statement to that effect and the basis upon
which the determination was made.
Proposed Sec. 300.350 (Children with disabilities in
religiously-affiliated or other private schools) has been deleted. A
new Sec. 300.455(c) has been added to specify LEA responsibilities
regarding the development of ``services plans'' for private school
children.
[[Page 12410]]
Proposed Sec. 300.351 (IEP--accountability) has been
redesignated as Sec. 300.350, and revised to provide that (1) each
public agency must make a good faith effort to assist the child to
achieve the goals and objectives or benchmarks listed in the IEP; (2) a
State or public agency is not prohibited from establishing its own
accountability systems regarding teacher, school, or agency
performance; and (3) ``[n]othing in this section limits a parent's
right to ask for revisions of the child's IEP or to invoke due process
procedures if the parent feels that efforts required in paragraph (a)
of this section are not being met.''
Direct Services by SEA
Proposed Sec. 300.360 (Use of LEA allocation for direct
services) has been amended to clarify that (1) if an LEA does not elect
to apply for its Part B funds, the SEA must use those funds to ensure
that FAPE is available to all eligible children residing in the
jurisdiction of the LEA; (2) if the local allotment is not sufficient
to ensure FAPE to all eligible children within the LEA, the SEA must
ensure that FAPE is available to those children; and (3) the SEA may
use whatever funding sources are available in the State to ensure that
all eligible children within each LEA receive FAPE (see Sec. 300.301).
Proposed Sec. 300.370 (Use of SEA allocations) has been
amended to clarify that, of the Part B funds it retains for other than
administration, the SEA may use the funds either directly, or
distribute them to LEAs on a competitive, targeted, or formula basis.
5. Changes in Subpart D--Children in Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Proposed Sec. 300.401 (``Responsibility of SEA'') has been
revised to provide that a child with a disability placed by a public
agency as the means of providing FAPE to the child must receive an
education that meets the standards that apply to the SEA and LEA.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Proposed Sec. 300.403 (``Placement of children by parent
if FAPE is at issue'') has been revised to clarify that (1) the
provisions of Secs. 300.450-300.462 apply to children with disabilities
placed voluntarily in private schools, even though the public agency
made FAPE available to those children; (2) private school placement by
the parents must be appropriate (as determined by a court or hearing
officer) in order to be eligible for reimbursement, (3) a parental
placement does not need to meet State standards that apply to education
provided by the SEA and LEAs in order to be appropriate; and (4) the
reimbursement provisions of Sec. 300.403 also apply if 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 preschool program.
Children With Disabilities Enrolled by Their Parents in Private Schools
Proposed Sec. 300.451 (``Child find for private school
children with disabilities'') has been revised to specify that (1)
child find activities for those children must be comparable to child
find activities for children with disabilities in public schools, and
(2) LEAs must consult with representatives of parentally-placed private
school students with disabilities on how to conduct child find
activities for that population in a manner that is comparable to those
activities for public school children.
Proposed Sec. 300.452 (retitled ``Provision of services--
basic requirement'') has been amended to add a new provision related to
the SEA's responsibility for ensuring that a services plan is developed
for each private school child with a disability who has been designated
to receive services under these regulations.
Proposed Sec. 300.453 (``Expenditures'') has been revised
to specify that (1) each LEA must consult with representatives of
private school children with disabilities to decide how to conduct the
annual count of the number of those children; (2) the LEA must ensure
that the count is conducted by specified dates, and that the data are
used to determine the amount of Part B funds to be earmarked for
private school children in the next fiscal year; (3) the costs of child
find activities for private school children with disabilities may not
be considered in determining whether the LEA met the expenditures
requirement of this section; and (4) SEAs and LEAs are not prohibited
from providing services to private school children with disabilities
beyond those required by this part, consistent with State law or local
policy.
Proposed Sec. 300.454 (Services determined) has been
revised to specify that each LEA must (1) consult with private school
representatives on where services will be provided; (2) conduct
meetings to develop, review, and revise a ``services plan,'' in
accordance with Sec. 300.455, for each private school child with a
disability who has been designated to receive services under this part;
and (3) ensure that a representative of the private school participates
in the meetings.
Proposed Sec. 300.455 (Services provided) has been revised
to specify that (1) each private school child with a disability who has
been designated to receive Part B services must have a services plan,
and (2) the plan must, to the extent appropriate, meet the requirements
of Sec. 300.347 with respect to the services provided, and be
developed, reviewed and revised consistent with Secs. 300.342-300.346.
Proposed Sec. 300.456 (Location of services) has been
revised to make clear that, while transportation might be provided
between a child's home or private school and a service site if
necessary for the child to benefit from or participate in the services
offered, LEAs are not required to provide transportation between the
child's home and private school.
Proposed Sec. 300.457 (Complaints) has been revised to
specify that the due process procedures under this part apply to child
find activities for private school children with disabilities,
including evaluations.
6. Changes in Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
Proposed Sec. 300.500 (General responsibility of public
agencies; definitions) has been amended as follows:
(1) The proposed definition of ``consent'' (300.500(b)(1)) has been
revised to clarify that a revocation of consent does not have a
retroactive effect if the action consented to has already occurred.
(2) The proposed definition of ``evaluation'' (Sec. 300.500(b)(2))
has been revised by deleting the last sentence of the definition, to
ensure that evaluations may include a review of a child's performance
on a test or procedures used for all children in a school, grade, or
class.
Proposed Sec. 300.501 (Opportunity to examine records;
parent participation in meetings) has been amended to (1) delete the
word ``all'' from Sec. 300.501(a)(2); (2) delete the definition of
``meetings'' but provide that the term does not include certain
conversations or preparation for a meeting and (3) clarify that each
public agency must ``make reasonable efforts'' related to parental
participation in group
[[Page 12411]]
discussions relating to the educational placements of their child.
Proposed Sec. 300.502 (Independent educational evaluation
(IEE)) has been amended to (1) add that, upon request for an IEE,
parents must be given information about agency criteria applicable for
IEEs; (2) clarify, in Sec. 300.502(e)(1), that the criteria under which
an IEE is obtained must be the same as that of the public agency ``to
the extent such criteria are consistent with the parent's right to an
IEE,'' and (3) explain that an explanation of parent disagreement with
an agency evaluation may not be required and the public agency may not
delay either providing the IEE at public expense or, alternatively,
initiating a due process hearing.
Proposed Sec. 300.503 (Prior notice by the public agency;
content of notice) has been amended to delete the provision in
Sec. 300.503(b)(8) (related to informing parents about the State
complaint procedures). (See Sec. 300.504(b).)
Proposed Sec. 300.504 (Procedural safeguards notice) has
been amended to add State complaint procedures under Secs. 300.660-
300.662 to the items included in the notice.
Proposed Sec. 300.505 (Parental consent) has been amended
to (1) refer to ``informed parent consent;'' (2) add ``all
reevaluations'' to the list of actions requiring consent (see
Sec. 300.505(a)(1)(i)); (3) delete paragraph (a)(1)(iii), and add a new
paragraph (a)(3) to specify that parental consent is not required
before reviewing existing evaluation data as a part of an evaluation or
reevaluation or for administering a test used with all children unless
consent is required of all parents; and (4) specify, in paragraph (e),
that a public agency may not use a parental refusal to consent to one
service or benefit under paragraphs (a) and (d) to deny the parent or
child another service or benefit.
Proposed Sec. 300.506 (Mediation) has been revised to (1)
add a new Sec. 300.506(b)(2) to specify that the mediator must be
selected from a list of mediators on a random basis (e.g., a rotation),
or that both parties are involved in selecting the mediator and agree
with the selection of the individual who will mediate; and (2) add a
new Sec. 300.506(c)(2) to clarify that payment for mediation services
by the State does not make the mediator an employee of the State agency
for purposes of impartiality.
Proposed Sec. 300.507 (Impartial due process hearing;
parent notice) has been amended to clarify that, in the content of the
parent notice, the description of the nature of the problem applies to
the action ``refused'' as well as that proposed by the public agency.
Proposed Sec. 300.509 (Hearing rights) has been revised to
clarify that, in paragraph (a)(3), the disclosure is required at least
5 ``business'' days before the hearing.
Proposed Sec. 300.510 (Finality of decision; impartiality
of review) has been amended to (1) make the reference to written
findings and decision in Sec. 300.510(b)(2)(vi) consistent with
Sec. 300.509(a)(5), and (2) allow the choice of ``electronic or written
findings of fact and decision.''
Proposed Sec. 300.513 (Attorneys' fees) has been amended
to include all of the provisions of section 615(i)(3)(C)-(G) of the
Act.
Proposed Sec. 300.514(c) has been amended to provide that
a decision by a State hearing or review officer that is in agreement
with the parents constitutes an agreement for purposes of pendency.
Proposed Sec. 300.515 (Surrogate parents) has been revised
to permit employees of nonpublic agencies that have no role in
educating a child to serve as surrogate parents.
Discipline Procedures
A new Sec. 300.519 (Change of placement for disciplinary
removals) has been added regarding change of placement in the context
of removals under Secs. 300.520-300.529.
Proposed Sec. 300.520 (Authority of school personnel) has
been amended as follows:
(1) Proposed Sec. 300.520(a)(1) has been revised to specify that to
the extent removal would be applied to children without disabilities,
school personnel may order the removal of a child with a disability
from the child's current placement for not more than 10 consecutive
school days and additional removals of not more than 10 consecutive
school days in that same school year for separate incidents of
misconduct as long as they do not constitute a change in placement
under Sec. 300.519, and to make clear that after a child with a
disability has been removed from his or her current placement for more
than 10 school days in the same school year, during any subsequent days
of removal the public agency must provide services to the extent
necessary under Sec. 300.121(d).
(2) Proposed Sec. 300.520(b) has been revised to replace
``suspension'' with ``removal,'' and to specify that when first
removing a child for more than 10 school days in a school year, or
commencing a removal that constitutes a change of placement, the LEA
must within 10 business days, convene an IEP meeting. If the agency had
not already conducted a functional behavioral assessment and
implemented a behavioral intervention plan for the child the purpose of
the IEP meeting is to develop an assessment plan. As soon as
practicable after completion of the plan, the LEA must then convene an
IEP meeting to develop appropriate behavioral interventions to address
the child's behavior. If a child already has a behavioral intervention
plan, the purpose of the IEP meeting is to review the plan and its
implementation.
(3) Proposed Sec. 300.520(c) has been deleted and replaced with a
provision that requires that if a child with a disability who has a
behavioral intervention plan and has been removed for more than 10
school days in a school year subsequently is subjected to a removal
that is not a change of placement, the child's IEP team members shall
review the behavioral intervention plan, and meet to modify it or its
implementation if one or more team members think modifications are
needed.
Proposed Sec. 300.521(d) has been modified to make clear
that the hearing officer determines the appropriateness of the interim
alternative educational setting proposed by school personnel who have
consulted with the child's special education teacher.
Proposed Sec. 300.522 (Determination of setting) has been
amended to (1) specify that the interim alternative educational setting
referred to in Sec. 300.520(a)(2) must be determined by the IEP team;
and (2) clarify that the services and modifications to address the
child's behavior are designed to prevent the behavior from recurring.
Proposed Sec. 300.523 (Manifestation determination review)
has been amended as follows:
(1) Proposed Sec. 300.523(a) has been revised to (1) specify that
the manifestation determination review is done regarding behavior
described in Secs. 300.520(a)(2) and 300.521, or if a removal is
contemplated that constitutes a change of placement under Sec. 300.519;
and (2) require that parents be provided notice of procedural
safeguards consistent with Sec. 300.504.
(2) Proposed Sec. 300.523(b) (exception to conducting a
manifestation determination review) has been removed.
(3) Proposed Sec. 300.523(c) has been redesignated as
Sec. 300.523(b) and revised to specify that the manifestation
determination review is conducted at a meeting.
(4) Proposed Sec. 300.523(d) and (e) have been redesignated as
Sec. 300.523(c) and (d) and revised by adding ``and other
[[Page 12412]]
qualified personnel'' after ``IEP team'' each time it is used.
(5) Proposed paragraph (f) has been redesignated as paragraph (e)
and a new paragraph (f) has been added to clarify that if in the
manifestation review deficiencies are identified in the child's IEP or
placement or in their implementation, the public agency must act to
correct those deficiencies.
Proposed Sec. 300.524 (Determination that behavior was not
a manifestation of disability) has been amended to (1) replace, in
paragraph (a), the reference to ``section 612 of the Act'' with
``Sec. 300.121(c);'' and (2) refer, in paragraph (c), to the placement
rules of Sec. 300.526.
Proposed Sec. 300.525 (Parent appeal) has been revised to
refer to any decision regarding placement under Secs. 300.520-300.528.
Proposed Sec. 300.526(c)(3) has been revised to clarify
that extensions of 45 day removals by a hearing officer because
returning the child to the child's current placement would be
dangerous, may be repeated, if necessary.
Proposed Sec. 300.527 (Protections for children not yet
eligible for special education and related services) has been amended
as follows:
(1) Proposed Sec. 300.527(b)(1) has been revised to refer to not
knowing how to write rather than illiteracy in English.
(2) Proposed Sec. 300.527(b)(2) has been revised to clarify that
the behavior or performance is in relation to the categories of
disability identified in Sec. 300.7.
(3) Proposed Sec. 300.527(b)(4) has been revised to refer to other
personnel who have responsibilities for child find or special education
referrals in the agency.
(4) Proposed Sec. 300.527(c) has been redesignated as paragraph
(d), and a new paragraph (c) has been added to provide that if an
agency acts on one of the bases identified in paragraph (b), determines
that the child is not eligible, and provides proper notice to the
parents, and there are no additional bases of knowledge under paragraph
(b) that were not considered, the agency would not be held to have a
basis of knowledge under Sec. 300.527(b).
(5) Proposed Sec. 300.527(d)(2)(ii) has been revised to clarify
that an educational placement under that provision can include
suspension or expulsion without educational services.
Proposed Sec. 300.528 (Expedited due process hearings) has
been amended as follows:
(1) Proposed Sec. 300.528(a)(1) (requiring a decision within 10
business days) has been deleted. (Paragraphs (a)(2) and (a)(3) are
redesignated as (a)(1) and (a)(2) and paragraphs (b) and (c) are
redesignated as (c) and (d).)
(2) A new Sec. 300.528(b) has been added to require that (A) each
State establish a timeline for expedited due process hearings that
results in a written decision being mailed to the parties within 45
days, with no extensions permitted that result in decisions being
issued more than 45 days after the hearing request is received by the
public agency; and (B) decisions be issued in the same period of time,
whether the hearing is requested by a parent or an agency.
(3) Redesignated Sec. 300.528(d) has been revised to specify that
expedited due process hearings are appealable consistent with the
Sec. 300.510.
Proposed Sec. 300.529 (Referral to and action by law
enforcement and judicial authorities) has been amended to make clear
that copies of a child's special education and disciplinary records may
be transmitted only to the extent that such transmission is permitted
under FERPA. (Section 300.571 has been amended to note the relationship
of this section.)
Procedures for Evaluation and Determination of Eligibility
Proposed Sec. 300.532 (Evaluation procedures) has been
amended to (1) require that assessments of children with limited
English proficiency must be selected and administered to ensure that
they measure the extent to which a child has a disability and needs
special education, and do not, instead, measure the child's English
language skills (Sec. 300.532(a)2); (2) provide that the information
gathered include information related to enabling the child to be
involved and progress in the general curriculum or appropriate
activities if the child is a preschool child (Sec. 300.532(b)); (3)
provide that 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, must be
included in the evaluation report (Sec. 300.532(c)(2)); and (4) provide
that each public agency ensure that the evaluation of each child with a
disability under Secs. 300.531-300.536 is sufficiently comprehensive to
identify all of the child's special education and related services
needs, whether or not commonly linked to the disability category in
which the child has been classified.
Proposed Sec. 300.533 (Determination of needed evaluation
data) has been revised to clarify that the group reviewing existing
data may conduct that review without a meeting (Sec. 300.533(b)).
Proposed Sec. 300.534 (Determination of eligibility) has
been amended to clarify that (1) children are not eligible if they need
specialized instruction because of limited English proficiency or lack
of instruction in reading or math, but do not need such instruction
because of a disability, as defined in Sec. 300.7; and (2) the
evaluation required in Sec. 300.534(c)(1) is not required before
termination of a child's eligibility under Part B of the Act due to
graduation with a regular high school diploma, or ceasing to meet the
age requirement for FAPE under State law.
Proposed Sec. 300.535 (Procedures for determining
eligibility and placement) has been revised to add ``parent input'' to
the variety of sources from which the public agency will draw in
interpreting evaluation data for the purpose of determining a child's
eligibility under this part.
Least Restrictive Environment (LRE)
Proposed Sec. 300.550 (General LRE requirements) has been
amended to add a cross reference to Sec. 300.311(b) and (c), to clarify
that the LRE provisions do not apply to students with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons.
Proposed Sec. 300.552 (Placements) has been amended to (1)
include a reference to preschool children with disabilities in the
introductory paragraph of this section, and (2) to add a new
Sec. 300.552(e) prohibiting the removal of child with a disability from
an age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
Confidentiality of Information
Proposed Sec. 300.562 (Access rights) has been revised to
make it clear that expedited due process hearing procedures under
Secs. 300.521-300.529 are also covered under this section.
Proposed Sec. 300.571 (Consent) has been amended to permit
disclosures without parental consent to the agencies identified in
Sec. 300.529, to the extent permitted under the Family Educational
Rights and Privacy Act (FERPA).
Proposed Sec. 300.574 (Children's rights) has been revised
by incorporating into the regulations the substance of the two notes
following the section (relating to transfer of educational records to
the student at age 18).
Department Procedures
Proposed Sec. 300.589 (Waiver of requirement regarding
supplementing
[[Page 12413]]
and not supplanting with Part B funds) has been revised to conform to
the statutory provision that the Secretary provides a waiver ``in whole
or in part.''
7. Changes in Subpart F--State Administration
Proposed Sec. 300.652 (Advisory panel functions) has been
revised to clarify that one of the duties of the advisory panel is
advising the State agency that has general responsibility for students
who have been convicted as adults and incarcerated in adult prisons.
Proposed Sec. 300.653 (Advisory panel procedures) has been
amended to specify that all advisory panel meetings and agenda items
must be ``announced enough in advance of the meeting to afford
interested parties a reasonable opportunity to attend.''
Proposed Sec. 300.660 (Adoption of State complaint
procedures) has been revised to clarify that if an SEA, in resolving a
complaint, finds a failure to provide appropriate services to a child
with a disability, the SEA must address (1) how to remediate the denial
of those services, including, as appropriate, the awarding of monetary
reimbursement or other corrective action appropriate to the needs of
the child; and (2) appropriate future provision of services for all
children with disabilities.
Proposed Sec. 300.661 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's failure to
implement a due process decision would have to be resolved by the SEA.
8. Changes in Subpart G--Allocation of Funds; Reports
Proposed Sec. 300.712 (Allocations to LEAs) has been
revised to clarify that, if LEAs are created, combined, or otherwise
reconfigured subsequent to the base year (i.e. the year prior to the
year in which the appropriation under section 611(j) of the Act exceeds
$4,924,672,200), the State is required to provide the LEAs involved
with revised base allocations calculated on the basis of the relative
numbers of children with disabilities aged 3 through 21, or 6 through
21, depending on whether the State serves all children with
disabilities aged 3 through 5 currently provided special education by
each of the affected LEAs. The section also has been expanded to state
that, for the purpose of making grants under this section, States must
apply, on a uniform basis across all LEAs, the best data that are
available to them on the numbers of children enrolled in public and
private elementary and secondary schools and the numbers of children
living in poverty.
Proposed Sec. 300.713 (Former Chapter 1 State agencies)
has been revised to clarify that the amount each former Chapter 1 State
agency must receive is the minimum amount.
Proposed Sec. 300.751 (Annual report of children served)
has been revised to clarify that the Secretary may permit States to
collect certain data through sampling.
9. Changes to Part 303
Proposed Sec. 303.510 (Adopting State complaint
procedures) has been revised to clarify that if a lead agency, in
resolving a complaint, finds a failure to provide appropriate services,
it must address (1) how to remediate the denial of those services,
including, as appropriate, the awarding of monetary reimbursement or
other corrective action appropriate to the needs of the child and the
child's family, as well as (2) appropriate future provision of services
for all infants and toddlers with disabilities and their families.
Proposed Sec. 303.512 (Minimum State complaint procedures)
has been revised to clarify that (1) if an issue in a complaint is the
subject of a due process hearing, that issue (but not any issue outside
of the hearing) would be set aside until the conclusion of the hearing,
(2) the decision on an issue in a due process hearing would be binding
in a State complaint resolution, and (3) a public agency's or private
service provider's failure to implement a due process decision must be
resolved by the lead agency.
Role of the Regular Education Teacher on the IEP Team
The regulations at Secs. 300.344(a)(2) and 300.346(d) repeat the
statutory provisions regarding the role of the regular education
teacher in developing, reviewing, and revising IEPs. The extent of the
regular education teacher's involvement in the IEP process would be
determined on a case by case basis and is addressed in question 24 in
Appendix A.
Discipline for Children With Disabilities
Some Key Changes in the Regulations Regarding Discipline for Children
With Disabilities
One of the major areas of concern in public comment on the NPRM was
the issue of discipline for children with disabilities under the Act.
The previous list of major changes briefly describes the major changes
from the NPRM that are reflected in these final regulations regarding
discipline under Secs. 300.121(d), and 300.519-529. These changes
reflect very serious consideration of the concerns of school
administrators and teachers regarding preserving school safety and
order without unduly burdensome requirements, while helping schools
respond appropriately to a child's behavior, promoting the use of
appropriate behavioral interventions, and increasing the likelihood of
success in school and school completion for some of our most at-risk
students.
The comments also revealed some confusion about several of the
provisions of the Act and the NPRM regarding discipline. Limitations in
the statute and regulations about the amount of time that a child can
be removed from his or her current placement only come into play when
schools are not able to work out an appropriate placement with the
parents of a child who has violated a school code of conduct. In many,
many cases involving discipline for children with disabilities, schools
and parents are able to reach an agreement about how to respond to the
child's behavior. In addition, neither the statute or the proposed or
final regulations impose absolute limits on the number of days that a
child can be removed from his or her current placement in a school
year. As was the case in the past, school personnel have the ability to
remove a child for short periods of time as long as the removal does
not constitute a change of placement. To help make this point, the
regulations include a new provision (Sec. 300.519) that reflects the
Department's longstanding definition of what constitutes a ``change of
placement'' in the disciplinary context. In this regulation, a
disciplinary ``change of placement'' occurs when a child is removed for
more than 10 consecutive school days or when the child is subjected to
a series of removals that constitute a pattern because they cumulate to
more than 10 school days in a school year, and because of factors such
as the length of the removal, the total amount of time the child is
removed, and the proximity of the removals to one another.
(Sec. 300.519). Changes also have been made to Sec. 300.520(a)(1) to
make clear that multiple short-term removals (i.e., 10 consecutive days
or less) for separate incidents of misconduct are permitted, to the
extent removals would be applied
[[Page 12414]]
to children without disabilities as long as those removals do not
constitute a change of placement, as defined in Sec. 300.519.
Instead of requiring that services begin on the eleventh day in a
school year that a child is removed from his or her current educational
placement, as was proposed in the NPRM, the regulations take a more
flexible approach. If the removal is pursuant to school personnel's
authority to remove for not more than 10 consecutive days
(Sec. 300.520(a)(1)) or for behavior that is not a manifestation of the
child's disability, consistent with Sec. 300.524 services must be
provided to the extent necessary to enable the child to continue to
appropriately progress in the general curriculum and appropriately
advance toward the goals in his or her IEP. (Sec. 300.121(d)).
If the removal is by school personnel under their authority to
remove for not more than 10 school days at a time (Sec. 300.520(a)(1)),
school personnel, in consultation with the child's special education
teacher, make the determination regarding the extent to which services
are necessary to meet this standard. (Sec. 300.121(d)(3)(i)). On the
other hand, if the removal constitutes a change in placement, the
child's IEP team must be involved. If the removal is pursuant to the
authority to discipline a child with a disability to the same extent as
a nondisabled child for behavior that has been determined to not be a
manifestation of the child's disability (Sec. 300.524), the child's IEP
team makes the determination regarding the extent to which services are
necessary to meet this standard. (Sec. 300.121(d)(3)(ii)). If the child
is being placed in an interim alternative educational setting for up to
45 days because of certain weapon or drug offenses (Sec. 300.520(a)(2))
or because a hearing officer has determined that there is a substantial
likelihood of injury to the child or others if the child remains in his
or her current placement (Sec. 300.521), the services to be provided to
the child are determined based on Sec. 300.522. In these cases, the
interim alternative educational setting must be selected so as to
enable the child to continue to progress 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 to address the behavior.
(Secs. 300.121(d)(2)(ii) and 300.522).
Under these regulations, IEP team meetings regarding functional
behavioral assessments and behavioral intervention plans will only be
required within 10 business days of (1) when the child is first removed
for more than 10 school days in a school year, and (2) whenever the
child is subjected to a disciplinary change of placement.
(Sec. 300.520(b)(1)). In other subsequent removals in a school year of
a child who already has a functional behavioral assessment and
behavioral intervention plan, the IEP team members can review the
behavioral intervention plan and its implementation in light of the
child's behavior, without a meeting, and only meet if one or more of
the team members believe that the plan or its implementation need
modification. (Sec. 300.520(c)).
These final regulations also provide that manifestation
determinations, and the IEP team meetings to make these determinations,
are only required when a child is subjected to a disciplinary change of
placement. (Sec. 300.523(a)). These changes should eliminate the need
for unnecessary, repetitive IEP team meetings. The discussion of
comments regarding the disciplinary sections of the regulations in
Attachment 1 provides a fuller explanation of the regulatory provisions
regarding discipline.
Answers to Some Commonly Asked Questions About Discipline Under IDEA
Prior to the amendments to the Education of the Handicapped Act
(EHA) in 1975, (the EHA is today known as IDEA), the special
educational needs of children with disabilities were not being met.
More than half of the children with disabilities in the United States
did not receive appropriate educational services, and a million
children with disabilities were excluded entirely from the public
school system. All too often, school officials used disciplinary
measures to exclude children with disabilities from education simply
because they were different or more difficult to educate than
nondisabled children.
It is against that backdrop that Pub. L. 94-142 was developed, with
one of its primary goals being the elimination of any exclusion of
children with disabilities from education. In the IDEA reauthorization
of 1997, Congress recognized that in certain instances school districts
needed increased flexibility to deal with safety issues while
maintaining needed due process protections in the IDEA. The following
questions and answers address: (1) the proactive requirements of the
IDEA designed to ensure that children with disabilities will be able to
adhere to school rules; (2) IDEA provisions regarding removal of
students from their current placement when their behavior significantly
violates school discipline codes; and (3) the requirement of the IDEA
for the continuation of services for children with disabilities who are
disciplined.
1. Why are there special rules about discipline for children with
disabilities?
The protections in the IDEA regarding discipline are designed to
prevent the type of often speculative and subjective decision making by
school officials that led to widespread abuses of the rights of
children with disabilities to an appropriate education in the past. For
example, in Mills v. Board of Education of the District of Columbia
(1972) the court recognized that many children were being excluded
entirely from education merely because they had been identified as
having a behavior disorder. It is important to keep in mind, however,
that these protections do not prevent school officials from maintaining
a learning environment that is safe and conducive to learning for all
children. Well run schools that have good leadership, well-trained
teachers and high standards for all students have fewer discipline
problems than schools that do not.
It is also extremely important to keep in mind that the provisions
of the statute and regulation concerning the amount of time a child
with a disability can be removed from his or her regular placement for
disciplinary reasons are only called into play if the removal
constitutes a change of placement and the parent objects to proposed
action by school officials (or objects to a refusal by school officials
to take an action) and requests a due process hearing. The discipline
rules concerning the amount of time a child can be removed from his or
her current placement essentially are exceptions to the generally
applicable requirement that a child remains in his or her current
placement during the pendency of due process, and subsequent judicial,
proceedings. (See, section 615(j) of the Act and Sec. 300.514.) If
school officials believe that a child's placement is inappropriate they
can work with the child's parent through the IEP and placement
processes to come up with an appropriate placement for the child that
will meet the needs of the child and result in his or her improved
learning and the learning of others and ensure a safe environment. In
addition to the other measures discussed in the following questions,
the discipline provisions of the IDEA allow responsible and appropriate
changes in placement of children with disabilities when their parents
do not object.
[[Page 12415]]
2. Does IDEA contain provisions that promote proactive up-front
measures that will help prevent discipline problems?
Yes. Research has shown that if teachers and other school personnel
have the knowledge and expertise to provide appropriate behavioral
interventions, future behavior problems can be greatly diminished if
not totally avoided. Appropriate staff development activities and
improved pre-service training programs at the university level with
emphasis in the area of early identification of reading and behavior
problems and appropriate interventions can help to ensure that regular
and special education teachers and other school personnel have the
needed knowledge and skills. Changes in the IDEA emphasize the need of
State and local educational agencies to work to ensure that
superintendents, principals, teachers and other school personnel are
equipped with the knowledge and skills that will enable them to
appropriately address behavior problems when they occur.
In addition, the IDEA includes provisions that focus on individual
children. If a child has behavior problems that interfere with his or
her learning or the learning of others, the IEP team must consider
whether strategies, including positive behavioral interventions,
strategies, and supports are needed to address the behavior. If the IEP
team determines that such services are needed, they must be added to
the IEP and must be provided. The Department has supported a number of
activities such as training institutes, conferences, clearinghouses and
other technical assistance and research activities on this topic to
help school personnel appropriately address behavioral concerns for
children with disabilities.
3. Can a child with a disability who is experiencing significant
disciplinary problems be removed to another placement?
Yes. Even when school personnel are appropriately trained and are
proactively addressing children's behavior issues through positive
behavioral intervention supports, interventions, and strategies, there
may be instances when a child must be removed from his or her current
placement. When there is agreement between school personnel and the
child's parents regarding a change in placement (as there frequently
is), there will be no need to bring into play the discipline provisions
of the law. Even if agreement is not possible, in general, school
officials can remove any child with a disability from his or her
regular school placement for up to 10 school days at a time, even over
the parents' objections, whenever discipline is appropriate and is
administered consistent with the treatment of nondisabled children.
Sec. 300.520(a)(1). However, school officials cannot use this authority
to repeatedly remove a child from his or her current placement if that
series of removals means the child is removed for more than 10 school
days in a school year and 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 there has
been a change in placement. Secs. 300.519-300.520(a)(1). There is no
specific limit on the number of days in a school year that a child with
a disability can be removed from his or her current placement. After a
child is removed from his or her current placement for more than 10
cumulative school days in a school year, services must be provided to
the extent required under Sec. 300.121(d), which concerns the provision
of FAPE for children suspended or expelled from school.
If the child's parents do not agree to a change of placement,
school authorities can unilaterally remove a child with a disability
from the child's regular placement for up to 45 days at a time if the
child has brought a weapon to school or to a school function, or
knowingly possessed or used illegal drugs or sold or solicited the sale
of controlled substances while at school or a school function.
Sec. 300.520(a)(2). In addition, if school officials believe that a
child with a disability is substantially likely to injure self or
others in the child's regular placement, they can ask an impartial
hearing officer to order that the child be removed to an interim
alternative educational setting for a period of up to 45 days.
Sec. 300.521. If at the end of an interim alternative educational
placement of up to 45 days, school officials believe that it would be
dangerous to return the child to the regular placement because the
child would be substantially likely to injure self or others in that
placement, they can ask an impartial hearing officer to order that the
child remain in an interim alternative educational setting for an
additional 45 days. Sec. 300.526(c). If necessary, school officials can
also request subsequent extensions of these interim alternative
educational settings for up to 45 days at a time if school officials
continue to believe that the child would be substantially likely to
injure self or others if returned to his or her regular placement.
Sec. 300.526(c)(4).
Additionally, at any time, school officials may seek to obtain a
court order to remove a child with a disability from school or to
change a child's current educational placement if they believe that
maintaining the child in the current educational placement is
substantially likely to result in injury to the child or others.
Finally, school officials can report crimes committed by children
with disabilities to appropriate law enforcement authorities to the
same extent as they do for crimes committed by nondisabled students.
Sec. 300.529.
4. Do the IDEA regulations mean that a child with a disability cannot
be removed from his or her current placement for more than ten school
days in a school year?
No. School authorities may unilaterally suspend a child with a
disability from the child's regular placement for not more than 10
school days at a time for any violation of school rules if nondisabled
children would be subjected to removal for the same offense. They also
may implement additional suspensions of up to ten school days at a time
in that same school year for separate incidents of misconduct if
educational services are provided for the remainder of the removals, to
the extent required under Sec. 300.121(d). (See the next question
regarding the provision of educational services during periods of
removal.) However, school authorities may not remove a child in a
series of short-term suspensions (up to 10 school days at a time), if
these suspensions constitute a pattern that is a change of placement
because the removals cumulate to more than 10 school days in a school
year and because of factors such as the length of each removal, the
total amount of time the child is removed, and the proximity of the
removals to one another. But not all series of removals that cumulate
to more than 10 school days in a school year would constitute a pattern
under Sec. 300.519(b).
Of course, in the case of less serious infractions, schools can
address the misconduct through appropriate instructional and/or related
services, including conflict management, behavior management
strategies, and measures such as study carrels, time-outs, and
restrictions in privileges, so long as they are not inconsistent with
the child's IEP. If a child's IEP or behavior intervention plan
addresses a particular behavior, it generally would be inappropriate to
utilize some other
[[Page 12416]]
response, such as suspension, to that behavior.
5. What must a school district do when removing a child with a
disability from his or her current placement for the eleventh
cumulative day in a school year?
Beginning on the eleventh cumulative day in a school year that a
child with a disability is removed from his or her current placement,
the school district must provide those services that school personnel
(for example, the school administrator or other appropriate school
personnel) in consultation with the child's special education teacher
determine to be necessary to enable the child to appropriately progress
in the general curriculum and appropriately advance toward achieving
the goals set out in the child's IEP. School personnel would determine
where those services would be provided. This means that for the
remainder of the removal that includes the eleventh day, and for any
subsequent removals, services must be provided to the extent determined
necessary, while the removal continues. Sec. 300.121(d)(2) and (3).
Not later than 10 business days after removing a child with a
disability for more than 10 school days in a school year, the school
district must convene an IEP team meeting to develop a behavioral
assessment plan if the district has not already conducted a functional
behavioral assessment and implemented a behavioral intervention plan
for the child. If a child with a disability who is being removed for
the eleventh cumulative school day in a school year already has a
behavioral intervention plan, the school district must convene the IEP
team (either before or not later than 10 business days after first
removing the child for more than 10 school days in a school year) to
review the plan and its implementation, and modify the plan and its
implementation as necessary to address the behavior. Sec. 300.520(b).
A manifestation determination would not be required unless the
removal that includes the eleventh cumulative school day of removal in
a school year is a change of placement. Sec. 300.523(a).
6. Does the IDEA or its regulations mean that a child with a disability
can never be suspended for more than 10 school days at a time or
expelled for behavior that is not a manifestation of his or her
disability?
No. If the IEP team concludes that the child's behavior was not a
manifestation of the child's disability, the child can be disciplined
in the same manner as nondisabled children, except that appropriate
educational services must be provided. Sec. 300.524(a). This means that
if nondisabled children are long-term suspended or expelled for a
particular violation of school rules, the child with disabilities may
also be long-term suspended or expelled. Educational services must be
provided to the extent the child's IEP team determines necessary to
enable the child to appropriately progress in the general curriculum
and appropriately advance toward the goals set out in the child's IEP.
Sec. 300.121(d)(2).
7. Does the statutory language ``carries a weapon to school or to a
school function'' cover instances in which the child acquires a weapon
at school?
Yes. Although the statutory language ``carries a weapon to school
or to a school function'' could be viewed as ambiguous on this point,
in light of the clear intent of Congress in the Act to expand the
authority of school personnel to immediately address school weapons
offenses, the Department's opinion is that this language also covers
instances in which the child is found to have a weapon that he or she
obtained while at school.
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 final regulations 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
This is a significant regulatory action under section 3(f)(1) of
Executive Order 12866 and, therefore, these final regulations have been
reviewed by the Office of Management and Budget in accordance with that
order. Because it has been determined that these regulations are
economically significant under the order, the Department has conducted
an economic analysis, which is provided in Attachment 2. This
regulation has also been determined to be a major rule under the Small
Business Regulatory Enforcement Fairness Act of 1996.
These final 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.
[[Page 12417]]
All of these objectives are reflected in these final 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 final regulations, the Secretary has
determined that the benefits of these final 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.
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 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 will 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
[[Page 12418]]
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.
Regulatory Flexibility Act Certification
The Secretary certifies that these final regulations will not have
a significant economic impact on a substantial number of small
entities. The small entities that would be affected by these
regulations are small local educational agencies receiving Federal
funds under this program. These regulations would not have a
significant economic impact on the small LEAs affected because these
regulations impose minimal requirements beyond those that would
otherwise be required by the statute. In addition, increased costs
imposed by these regulations on LEAs are expected to be offset by
savings to be realized by LEAs.
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
In the NPRM published on October 22, 1997, the Secretary requested
comments on whether the proposed regulations would require transmission
of information that is being gathered by or is available from any other
agency or authority of the United States.
Based on the response to the NPRM and on its own review, the
Department has determined that the regulations in this document do not
require transmission of information that is being gathered by or is
available from any other agency or authority of the United States.
Electronic Access to This Document
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 303
Education of individuals with disabilities, Grant programs--
education, Infants and children, Reporting and recordkeeping
requirements.
Dated: March 4, 1999.
Richard W. Riley,
Secretary of Education.
(Catalog of Federal Domestic Assistance Number: 84.027 Assistance to
States for the Education of Children with Disabilities, and 84.181
Early Intervention Program for Infants and Toddlers with
Disabilities)
The Secretary amends Title 34 of the Code of Federal Regulations by
revising part 300 and amending part 303 as follows:
1. Part 300 is revised to read as follows:
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH
DISABILITIES
Subpart A--General
Purposes, Applicability, and Regulations That Apply to This Program
Sec.
300.1 Purposes.
300.2 Applicability of this part to State, local, and private
agencies.
Definitions Used in This Part
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 Consent.
300.9 Day; business day; school day.
300.10 Educational service agency.
300.11 Equipment.
300.12 Evaluation.
300.13 Free appropriate public education.
300.14 Include.
300.15 Individualized education program.
300.16 Individualized education program team.
300.17 Individualized family service plan.
300.18 Local educational agency.
300.19 Native language.
300.20 Parent.
300.21 Personally identifiable.
300.22 Public agency.
300.23 Qualified personnel.
300.24 Related services.
300.25 Secondary school.
300.26 Special education.
300.27 State.
300.28 Supplementary aids and services.
300.29 Transition services.
300.30 Definitions in EDGAR.
Subpart B--State and Local Eligibility
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.
300.114--300.120 [Reserved]
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]
[[Page 12419]]
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 and State Agency Eligibility--Specific Conditions
300.220 Consistency with State policies.
300.221 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.
School-Based Improvement Plan
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 report by advisory board.
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.
300.312 Children with disabilities in public charter schools.
300.313 Children experiencing developmental delays.
Evaluations and Reevaluations
300.320 Initial evaluations.
300.321 Reevaluations.
300.322--300.324 [Reserved]
Individualized Education Programs
300.340 Definitions related to IEPs.
300.341 Responsibility of SEA and other public agencies for IEPs.
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 IEPs--accountability.
Direct Services by the Sea
300.360 Use of LEA allocation for direct services.
300.361 Nature and location of services.
300.362--300.369 [Reserved]
300.370 Use of SEA allocations.
300.371 [Reserved]
300.372 Nonapplicability of requirements that prohibit commingling
and supplanting of funds.
Comprehensive System of Personnel Development (CSPD)
300.380 General CSPD requirements.
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.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE is at Issue
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 Provision of services--basic requirement.
300.453 Expenditures.
300.454 Services determined.
300.455 Services provided.
300.456 Location of services; transportation.
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.
[[Page 12420]]
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.
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
300.519 Change of placement for disciplinary removals.
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 (LRE)
300.550 General LRE requirements.
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 Definition.
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.
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
the 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 SEA.
300.755 Disproportionality.
300.756 Acquisition of equipment; construction or alteration of
facilities.
Appendix A to Part 300--Notice of Interpretation
Appendix B to Part 300--Index for IDEA--Part B Regulations
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)
[[Page 12421]]
Sec. 300.2 Applicability of this part 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--
(1) Apply to all political subdivisions of the State that are
involved in the education of children with disabilities, including--
(i) The State educational agency (SEA);
(ii) Local educational agencies (LEAs), educational service
agencies (ESAs), and public charter schools that are not otherwise
included as LEAs or ESAs and are not a school of an LEA or ESA;
(iii) Other State agencies and schools (such as Departments of
Mental Health and Welfare and State schools for children with deafness
or children with blindness); and
(iv) State and local juvenile and adult correctional facilities;
and
(2) Are binding on each public agency in the State that provides
special education and related services to children with disabilities,
regardless of whether that agency is receiving funds under Part B.
(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)
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 (Government-wide Debarment and Suspension
(Nonprocurement) and Government-wide 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 Used in This Part
Sec. 300.4 Act.
As used in this part, Act means the Individuals with Disabilities
Education Act (IDEA), as amended.
(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))
Sec. 300.7 Child with a disability.
(a) General. (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 multiple disabilities, and who, by
reason thereof, needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is
determined, through an appropriate evaluation under Secs. 300.530-
300.536, that a child has one of the disabilities identified in
paragraph (a)(1) of this section, but only needs a related service and
not special education, the child is not a child with a disability under
this part.
(ii) If, consistent with Sec. 300.26(a)(2), the related service
required by the child is considered special education rather than a
related service under State standards, the child would be determined to
be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged 3 through 9 experiencing developmental delays.
The term child with a disability for children aged 3 through 9 may, at
the discretion of the State and LEA and in accordance with
Sec. 300.313, include a child--
(1) 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; and
(2) Who, by reason thereof, needs special education and related
services.
(c) Definitions of disability terms. The terms used in this
definition are defined as follows:
(1)(i) 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.
(ii) A child who manifests the characteristics of ``autism'' after
age 3 could be diagnosed as having ``autism'' if the criteria in
paragraph (c)(1)(i) of this section are satisfied.
[[Page 12422]]
(2) Deaf-blindness means concomitant hearing and visual
impairments, the combination of which causes such severe communication
and other developmental and educational needs 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 disabilities means concomitant impairments (such as
mental retardation-blindness, mental retardation-orthopedic impairment,
etc.), the combination of which causes such severe educational needs
that they 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, including a heightened alertness to environmental
stimuli, that results in limited alertness with respect to the
educational environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, and sickle cell anemia; and
(ii) 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 conditions such 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))
Sec. 300.8 Consent.
As used in this part, the term consent has the meaning given that
term in Sec. 300.500(b)(1).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.9 Day; business day; school day.
As used in this part, the term--
(a) Day means calendar day unless otherwise indicated as business
day or school day;
(b) Business day means Monday through Friday, except for Federal
and State holidays (unless holidays are specifically included in the
designation of business day, as in Sec. 300.403(d)(1)(ii)); and
(c)(1) School day means any day, including a partial day, that
children are in attendance at school for instructional purposes.
(2) The term school day has the same meaning for all children in
school, including children with and without disabilities.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.10 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;
(b) Includes any other public institution or agency having
administrative control and direction over a public elementary or
secondary school; and
(c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of IDEA as in effect prior to June
4, 1997.
(Authority: 20 U.S.C. 1401(4))
Sec. 300.11 Equipment.
As used in this part, the term equipment means--
(a) Machinery, utilities, and built-in equipment and any necessary
[[Page 12423]]
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. 300.12 Evaluation.
As used in this part, the term evaluation has the meaning given
that term in Sec. 300.500(b)(2).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.13 Free appropriate public education.
As used in this part, the term free appropriate public education or
FAPE means special education and related services that--
(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 individualized education
program (IEP) that meets the requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1401(8))
Sec. 300.14 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. 300.15 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(a).
(Authority: 20 U.S.C. 1401(11))
Sec. 300.16 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)
Sec. 300.17 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. 300.18 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. 300.10;
(2) Any other public institution or agency having administrative
control and direction of a public elementary or secondary school,
including a public charter school that is established as an LEA under
State law; and
(3) An elementary or secondary school funded by the Bureau of
Indian Affairs, and not subject to the jurisdiction of any SEA other
than 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.
(Authority: 20 U.S.C. 1401(15))
Sec. 300.19 Native language.
(a) As used in this part, the term native language, if used with
reference to an individual of limited English proficiency, means the
following:
(1) The language normally used by that individual, or, in the case
of a child, the language normally used by the parents of the child,
except as provided in paragraph (a)(2) of this section.
(2) In all direct contact with a child (including evaluation of the
child), the language normally used by the child in the home or learning
environment.
(b) For an individual with deafness or blindness, or for an
individual with no written language, the mode of communication is that
normally used by the individual (such as sign language, braille, or
oral communication).
(Authority: 20 U.S.C. 1401(16))
Sec. 300.20 Parent.
(a) General. As used in this part, the term parent means--
(1) A natural or adoptive parent of a child;
(2) A guardian but not the State if the child is a ward of the
State;
(3) A person acting in the place of a parent (such as a grandparent
or stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare); or
(4) A surrogate parent who has been appointed in accordance with
Sec. 300.515.
(b) Foster parent. Unless State law prohibits a foster parent from
acting as a parent, a State may allow a foster parent to act 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; and
(2) The foster parent--
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the educational decisions required of
parents under the Act; and
(iii) Has no interest that would conflict with the interests of the
child.
(Authority: 20 U.S.C. 1401(19))
Sec. 300.21 Personally identifiable
As used in this part, the term personally identifiable has the
meaning given that term in Sec. 300.500(b)(3).
(Authority: 20 U.S.C. 1415(a))
Sec. 300.22 Public agency.
As used in this part, the term public agency includes the SEA,
LEAs, ESAs, public charter schools that are not otherwise included as
LEAs or ESAs and are not a school of an LEA or ESA, 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. 300.23 Qualified personnel.
As used in this part, the term qualified personnel means personnel
who have met SEA-approved or SEA-recognized certification, licensing,
registration, or other comparable requirements that apply to the area
in which the individuals are providing special education or related
services.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.24 Related services.
(a) General. 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
[[Page 12424]]
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 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) Individual terms defined. 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 children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children's needs 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--
(i) Means services provided by a qualified occupational therapist;
and
(ii) Includes--
(A) Improving, developing or restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent functioning
if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or further
impairment or loss of function.
(6) Orientation and mobility services--
(i) 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; and
(ii) Includes teaching students the following, as appropriate:
(A) 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 (e.g.,
using sound at a traffic light to cross the street);
(B) To use the long cane to supplement visual travel skills or as a
tool for safely negotiating the environment for students with no
available travel vision;
(C) To understand and use remaining vision and distance low vision
aids; and
(D) Other concepts, techniques, and tools.
(7) Parent counseling and training means--
(i) Assisting parents in understanding the special needs of their
child;
(ii) Providing parents with information about child development;
and
(iii) Helping parents to acquire the necessary skills that will
allow them to support the implementation of their child's IEP or IFSP.
(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 in partnership with parents and others on 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))
Sec. 300.25 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
[[Page 12425]]
it does not include any education beyond grade 12.
(Authority: 20 U.S.C. 1401(23))
Sec. 300.26 Special education.
(a) General. (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 each of the following, if it meets the
requirements of paragraph (a)(1) of this section:
(i) Speech-language pathology services, or any other related
service, if the service is considered special education rather than a
related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual terms defined. 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--
(i) 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); and
(ii) Includes special physical education, adapted physical
education, movement education, and motor development.
(3) Specially-designed instruction means adapting, as appropriate
to the needs of an eligible child under this part, the content,
methodology, or delivery of instruction--
(i) To address the unique needs of the child 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) Travel training means providing instruction, as appropriate, to
children with significant cognitive disabilities, and any other
children with disabilities who require this instruction, to enable them
to--
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from
place to place within that environment (e.g., in school, in the home,
at work, and in the community).
(5) 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))
Sec. 300.27 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. 300.28 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. 300.29 Transition services.
(a) As used in this part, transition services means a coordinated
set of activities for a student with a disability that--
(1) 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;
(2) Is based on the individual student's needs, taking into account
the student's preferences and interests; and
(3) Includes--
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult
living objectives; and
(v) If appropriate, acquisition of daily living skills and
functional vocational evaluation.
(b) Transition services for students with disabilities may be
special education, if provided as specially designed instruction, or
related services, if required to assist a student with a disability to
benefit from special education.
(Authority: 20 U.S.C. 1401(30))
Sec. 300.30 Definitions in EDGAR.
The following terms used in this part are defined in 34 CFR 77.1:
Application
Award
Contract
Department
EDGAR
Elementary school
Fiscal year
Grant
Nonprofit
Project
Secretary
Subgrant
State educational agency
(Authority: 20 U.S.C. 1221e-3(a)(1))
Subpart B--State and Local Eligibility
State Eligibility--General
Sec. 300.110 Condition of assistance.
(a) 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.
(b) To meet the requirement of paragraph (a) of this section, the
State must have on file with the Secretary--
(1) The information specified in Secs. 300.121-300.156 that the
State uses to implement the requirements of this part; and
(2) Copies of all applicable State statutes, regulations, and other
State documents that show the basis of that information.
(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
[[Page 12426]]
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. 300.581-300.586.
(Authority: 20 U.S.C. 1412(d))
Secs. 300.114--300.120 [Reserved]
State Eligibility--Specific Conditions
Sec. 300.121 Free appropriate public education (FAPE).
(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)(A) Applies to all public agencies in the State; and
(B) Is consistent with the requirements of Secs. 300.300-300.313;
and
(ii) Applies to all children with disabilities, including children
who have been suspended or expelled from school.
(c) FAPE for children beginning at age 3. (1) Each State shall
ensure that--
(i) The obligation to make FAPE available to each eligible child
residing in the State begins no later than the child's third birthday;
and
(ii) An IEP or an IFSP is in effect for the child by that date, in
accordance with Sec. 300.342(c).
(2) If a child's third birthday occurs during the summer, the
child's IEP team shall determine the date when services under the IEP
or IFSP will begin.
(d) FAPE for children suspended or expelled from school. (1) A
public agency need not provide services during periods of removal under
Sec. 300.520(a)(1) to a child with a disability who has been removed
from his or her current placement for 10 school days or less in that
school year, if services are not provided to a child without
disabilities who has been similarly removed.
(2) In the case of a child with a disability who has been removed
from his or her current placement for more than 10 school days in that
school year, the public agency, for the remainder of the removals,
must--
(i) Provide services to the extent necessary to enable the child to
appropriately progress in the general curriculum and appropriately
advance toward achieving the goals set out in the child's IEP, if the
removal is--
(A) Under the school personnel's authority to remove for not more
than 10 consecutive school days as long as that removal does not
constitute a change of placement under Sec. 300.519(b)
(Sec. 300.520((a)(1)); or
(B) For behavior that is not a manifestation of the child's
disability, consistent with Sec. 300.524; and
(ii) Provide services consistent with Sec. 300.522, regarding
determination of the appropriate interim alternative educational
setting, if the removal is--
(A) For drug or weapons offenses under Sec. 300.520(a)(2); or
(B) Based on a hearing officer determination that maintaining the
current placement of the child is substantially likely to result in
injury to the child or to others if he or she remains in the current
placement, consistent with Sec. 300.521.
(3)(i) School personnel, in consultation with the child's special
education teacher, determine the extent to which services are necessary
to enable the child to appropriately progress in the general curriculum
and appropriately advance toward achieving the goals set out in the
child's IEP if the child is removed under the authority of school
personnel to remove for not more than 10 consecutive school days as
long as that removal does not constitute a change of placement under
Sec. 300.519 (Sec. 300.520(a)(1)).
(ii) The child's IEP team determines the extent to which services
are necessary to enable the child to appropriately progress in the
general curriculum and appropriately advance toward achieving the goals
set out in the child's IEP if the child is removed because of behavior
that has been determined not to be a manifestation of the child's
disability, consistent with Sec. 300.524.
(e) Children advancing from grade to grade. (1) Each State shall
ensure that FAPE is available to any individual child with a disability
who needs special education and related services, even though the child
is advancing from grade to grade.
(2) The determination that a child described in paragraph (a)(1) of
this section is eligible under this part, must be made on an individual
basis by the group responsible within the child's LEA for making those
determinations.
(Authority: 20 U.S.C. 1412(a)(1))
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 the following:
(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)(i) 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--
(A) Were not actually identified as being a child with a disability
under Sec. 300.7; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not
apply to students with disabilities, aged 18 through 21, who--
(A) Had been identified as a child with disability and had received
services in accordance with an IEP, but
[[Page 12427]]
who left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who
had actually been identified as a ``child with a disability'' under
Sec. 300.7.
(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.
(iii) Graduation from high school with a regular diploma
constitutes a change in placement, requiring written prior notice in
accordance with Sec. 300.503.
(b) Documents relating to exceptions. The State must have on file
with the Secretary--
(1)(i) Information that describes in detail the extent to which 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 services under Part B of the Act certain
students who are incarcerated in an adult correctional facility.
(Authority: 20 U.S.C. 1412(a)(1)(B))
Sec. 300.123 Full educational opportunity goal (FEOG).
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. (1) The State must have in effect policies
and procedures to ensure that--
(i) 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
(ii) A practical method is developed and implemented to determine
which children are currently receiving needed special education and
related services.
(2) The requirements of paragraph (a)(1) of this section apply to--
(i) Highly mobile children with disabilities (such as migrant and
homeless children); and
(ii) Children who are suspected of being a child with a disability
under Sec. 300.7 and in need of special education, even though they are
advancing from grade to grade.
(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) Child find for children from birth through age 2 when the SEA
and lead agency for the Part C program are different. (1) 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, a
description of the nature and extent of the Part C lead agency's
participation must be included under paragraph (b)(2) of this section.
(2) 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 with disabilities.
(3) The use of an interagency agreement or other mechanism for
providing for the Part C lead agency's participation does not alter or
diminish the responsibility of the SEA to ensure compliance with the
requirements of this section.
(d) 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.
(e) Confidentiality of child find data. The collection and use of
data to meet the requirements of this section are subject to the
confidentiality requirements of Secs. 300.560-300.577.
(Authority: 20 U.S.C. 1412 (a)(3)(A) and (B))
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 to ensure 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. 300.560-300.576 to
evaluate the policies and procedures of the State under paragraph (a)
of this section.
(Authority: 20 U.S.C. 1412(a)(8))
Sec. 300.128 Individualized education programs.
(a) General. The State must have on file with the Secretary
information that shows that an IEP, or an 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. 300.340-300.350.
(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 IEPs or IFSPs.
(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.
[[Page 12428]]
(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, including the provision in Sec. 300.551 requiring a continuum
of alternative placements to meet the unique needs of each child with a
disability.
(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 where 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))
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 is being implemented
for the child consistent with Sec. 300.121(c); 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 Children in 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))
Sec. 300.136 Personnel standards.
(a) Definitions. 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 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;
(iii) Has a required scope of responsibility and degree of
supervision; and
(iv) Is not limited to traditional occupational categories; 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) Policies and procedures. (1)(i) 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.
(ii) The policies and procedures required in paragraph (b)(1)(i) 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.
(2) Each State may--
(i) Determine the specific occupational categories required to
provide special education and related services within the State; and
(ii) Revise or expand those categories as needed.
(3) Nothing in this part requires a State to establish a specified
training standard (e.g., a masters degree) for personnel who provide
special education and related services under Part B of the Act.
(4) A State with only one entry-level academic degree for
employment of personnel in a specific profession or discipline may
modify that standard as necessary to ensure the provision of FAPE to
all children with disabilities in the State without violating the
requirements of this section.
(c) Steps for retraining or hiring personnel. 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) Status of personnel standards in the State. (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
[[Page 12429]]
on file in the SEA and available to the public.
(e) Applicability of State statutes and agency rules. 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 with disabilities must be
considered.
(f) Use of paraprofessionals and assistants. 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) Policy to address shortage of personnel. (1) 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.
(2) If a State has reached its established date under paragraph (c)
of this section, the State may still exercise the option under
paragraph (g)(1) of this section for training or hiring all personnel
in a specific profession or discipline to meet appropriate professional
requirements in the State.
(3)(i) Each State must have a mechanism for serving children with
disabilities if instructional needs exceed available personnel who meet
appropriate professional requirements in the State for a specific
profession or discipline.
(ii) A State that continues to experience shortages of qualified
personnel must address those shortages in its comprehensive system of
personnel development under Sec. 300.135.
(Authority: 20 U.S.C. 1412(a)(15))
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 and
modifications in administration, 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))
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) In alternate assessments.
(2) The performance results of the children described in paragraph
(a)(1) of this section if doing so would be statistically sound and
would not result in the disclosure of performance results identifiable
to individual children--
(i) On regular assessments (beginning not later than July 1, 1998);
and
(ii) On alternate assessments (not later than July 1, 2000).
(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) Timeline for 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))
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 are 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
[[Page 12430]]
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
noneducational 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. (i)
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. 300.24 relating to
related services, Sec. 300.28 relating to supplementary aids and
services, and Sec. 300.29 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.
(ii) A noneducational public agency described in paragraph
(b)(1)(i) of this section may not disqualify an eligible service for
Medicaid reimbursement because that service is provided in a school
context.
(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 in a timely manner. 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 public insurance.
(1) A public agency may use the Medicaid or other public insurance
benefits programs in which a child participates to provide or pay for
services required under this part, as permitted under the public
insurance program, except as provided in paragraph (e)(2) of this
section.
(2) With regard to services required to provide FAPE to an eligible
child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public
insurance programs in order for their child to receive FAPE under Part
B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such
as the payment of a deductible or co-pay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to
paragraph (g)(2) of this section, may pay the cost that the parent
otherwise would be required to pay; and
(iii) May not use a child's benefits under a public insurance
program if that use would--
(A) Decrease available lifetime coverage or any other insured
benefit;
(B) Result in the family paying for services that would otherwise
be covered by the public insurance program and that are required for
the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of insurance;
or
(D) Risk loss of eligibility for home and community-based waivers,
based on aggregate health-related expenditures.
(f) Children with disabilities who are covered by private
insurance. (1) With regard to services required to provide FAPE to an
eligible child under this part, a public agency may access a parent's
private insurance proceeds only if the parent provides informed consent
consistent with Sec. 300.500(b)(1).
(2) Each time the public agency proposes to access the parent's
private insurance proceeds, it must--
(i) Obtain parent consent in accordance with paragraph (f)(1) of
this section; and
(ii) Inform the parents that their refusal to permit the public
agency to access their private insurance does not relieve the public
agency of its responsibility to ensure that all required services are
provided at no cost to the parents.
(g) Use of Part B funds. (1) If a public agency is unable to obtain
parental consent to use the parent's private insurance, or public
insurance when the parent would incur a cost for a specified service
required under this part, to ensure FAPE the public agency may use its
Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent
to use private insurance, or public insurance if the parent would incur
a cost, the public agency may use its Part B funds to pay the cost the
parents otherwise would have to pay to use the parent's insurance
(e.g., the deductible or co-pay amounts).
(h) Proceeds from public or private insurance. (1) Proceeds from
public or private insurance will not be treated as program income for
purposes of 34 CFR 80.25.
(2) 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.
(i) Construction. Nothing in this part should be construed to alter
the requirements imposed on a State Medicaid agency, or any other
agency administering a public insurance program by Federal statute,
regulations or policy under title XIX, or title XXI of the Social
Security Act, or any other public insurance program.
(Authority: 20 U.S.C. 1412(a)(12)(A), (B), and (C); 1401(8))
[[Page 12431]]
Sec. 300.143 SEA implementation of procedural 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 Hearings 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) General; exception. (1) Subject to paragraph (a)(2) of this
section, each 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.
(2) A State will be considered to have met paragraph (a)(1) of this
section with regard to a policy or procedure needed to comply with this
part if it can demonstrate that prior to the adoption of that policy or
procedure, the policy or procedure was subjected to a public review and
comment process that is required by the State for other purposes and is
comparable to and consistent with the requirements of Secs. 300.280-
300.284.
(b) Documentation. 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.
(a) 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.
(b) The assurance in paragraph (a) of this section 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).)
(Authority: 20 U.S.C. 1412(a)(18)(B))
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.
(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, on either a total or per-capita basis, 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
[[Page 12432]]
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. 1412(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 for State-level activities 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 Eeligibility--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 a 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) LLimitation 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
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 for these children.
(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))
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
[[Page 12433]]
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 and State Agency 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 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
(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))
Secs. 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 Secs. 300.232 and 300.233, funds
provided to an 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.
(c) Standard. (1) Except as provided in paragraph (c)(2) of this
section, the SEA determines that an LEA complies with paragraph (a) of
this section for purposes of establishing the LEA's eligibility for an
award for a fiscal year if the LEA budgets, for the education of
children with disabilities, at least the same total or per-capita
amount from either of the following sources as the LEA spent for that
purpose from the same source for the most recent prior year for which
information is available:
(i) Local funds only.
(ii) The combination of State and local funds.
(2) An LEA that relies on paragraph (c)(1)(i) of this section for
any fiscal year
[[Page 12434]]
must ensure that the amount of local funds it budgets for the education
of children with disabilities in that year is at least the same, either
in total or per capita, as the amount it spent for that purpose in--
(i) The most recent fiscal year for which information is available,
if that year is, or is before, the first fiscal year beginning on or
after July 1, 1997; or
(ii) If later, the most recent fiscal year for which information is
available and the standard in paragraph (c)(1)(i) of this section was
used to establish its compliance with this section.
(3) The SEA may not consider any expenditures made from funds
provided by the Federal Government for which the SEA is required to
account to the Federal Government or for which the LEA is required to
account to the Federal Government directly or through the SEA in
determining an LEA's compliance with the requirement in paragraph (a)
of this section.
(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 the following:
(a)(1) 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.
(2) In order for an LEA to invoke the exception in paragraph (a)(1)
of this section, the LEA must ensure that those voluntary retirements
or resignations and replacements are in full conformity with:
(i) Existing school board policies in the agency;
(ii) The applicable collective bargaining agreement in effect at
that time; and
(iii) Applicable State statutes.
(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.
(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))
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) General; limitation on amount of Part B funds used. 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
schoolwide 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; and multiplied by
(2) The number of children with disabilities participating in the
schoolwide program.
(b) Funding conditions. The funds described in paragraph (a) of
this section are subject to the following conditions:
(1) The funds must be considered as Federal Part B funds for
purposes of the calculations required by Secs. 300.230(b) and (c).
(2) The funds may be used without regard to the requirements of
Sec. 300.230(a).
(c) Meeting other Part B requirements. Except as provided in
paragraph (b) 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, including ensuring that children with disabilities in
schoolwide program schools--
(1) Receive services in accordance with a properly developed IEP;
and
(2) Are 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) Non-applicability of certain provisions. 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 paragraphs (a)(1)
and (a)(2) of this section.
(Authority: 20 U.S.C. 1413(a)(4))
Secs. 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
[[Page 12435]]
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))
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 Sec. 300.244 in accordance with the requirements of that
title.
(Authority: 20 U.S.C. 1413(f))
School-Based Improvement Plan
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--
(1) Is consistent with the purposes described in section 651(b) of
the Act; and
(2) 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. An 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 an 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 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.
[[Page 12436]]
(Authority: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(b) and (c) 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 with
disabilities served and the types and amounts of services provided and
needed;
(h)(1) 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 the SEAs and LEAs
and other entities to facilitate the provision of services to Indian
children with disabilities residing on or near reservations.
(2) The agreement must provide for the apportionment of
responsibilities and costs, including child find, evaluation,
diagnosis, remediation or therapeutic measures, and (if appropriate)
equipment and medical or personal supplies, as needed for a child with
a disability to remain in a school or program; and
(i) Includes an assurance that the Department of the Interior will
cooperate with the Department in its exercise of monitoring and
oversight of the requirements in this section and Secs. 300.261-
300.267, 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(b) and (c) 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.
(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, SEAs
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
[[Page 12437]]
the BIA, an advisory board composed of individuals involved in or
concerned with the education and provision of services to Indian
infants, toddlers, and children with disabilities, including Indians
with disabilities, Indian parents 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 report by advisory board.
(a) General. 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.
(b) Report to the Secretary. The Secretary of the Interior shall
make available to the Secretary the report described in paragraph (a)
of this section.
(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 adequate 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. (1) 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.
(2) As a part of its obligation under paragraph (a)(1) of this
section, each State must ensure that the requirements of Sec. 300.125
(to identify, locate, and evaluate all children with disabilities) are
implemented by public agencies throughout the State.
(3)(i) The services provided to the child under this part address
all of the child's identified special education and related services
needs described in paragraph (a) of this section.
(ii) The services and placement needed by each child with a
disability to receive FAPE must be based on the child's unique needs
and not on the child's disability.
(b) Exception for age ranges 3-5 and 18-21. 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:
(1) If State law or a court order requires the State to provide
education 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.
(2) 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.
(3) If a public agency provides education to 50 percent or more of
its
[[Page 12438]]
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.
(4) 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.
(5) 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 of the Act are
implemented for all children with disabilities 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))
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.
(c) Consistent with Secs. 300.342(b)(2) and 300.343(b), the State
must ensure that there is no delay in implementing a child's IEP,
including any case in which the payment source for providing or paying
for special education and related services to the child is being
determined.
(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))
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))
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)
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))
Sec. 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic and
extracurricular services and activities in the manner 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))
Sec. 300.308 Assistive technology.
(a) 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--
(1) Special education under Sec. 300.26;
(2) Related services under Sec. 300.24; or
(3) Supplementary aids and services under Secs. 300.28 and
300.550(b)(2).
(b) On a case-by-case basis, the use of school-purchased assistive
technology devices in a child's home or in other settings is required
if the child's IEP team determines that the child needs access to those
devices in order to receive FAPE.
(Authority: 20 U.S.C. 1412(a)(12)(B)(i))
Sec. 300.309 Extended school year services.
(a) General. (1) Each public agency shall ensure that extended
school year services are available as necessary to provide FAPE,
consistent with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a
child's IEP team determines, on an individual basis, in accordance with
Secs. 300.340-300.350, that the services are necessary for the
provision of FAPE to the child.
(3) In implementing the requirements of this section, a public
agency may not--
(i) Limit extended school year services to particular categories of
disability; or
(ii) Unilaterally limit the type, amount, or duration of those
services.
[[Page 12439]]
(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))
Sec. 300.310 [Reserved]
Sec. 300.311 FAPE requirements for students with disabilities in adult
prisons.
(a) Exception to FAPE for certain students. Except as provided in
Sec. 300.122(a)(2)(ii), 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) and 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))
Sec. 300.312 Children with disabilities in public charter schools.
(a) Children with disabilities who attend public charter schools
and their parents retain all rights under this part.
(b) If the public charter school is an LEA, consistent with
Sec. 300.17, that receives funding under Secs. 300.711-300.714, that
charter school is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity.
(c) If the public charter school is a school of an LEA that
receives funding under Secs. 300.711-300.714 and includes other public
schools--
(1) The LEA is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity; and
(2) The LEA must meet the requirements of Sec. 300.241.
(d)(1) If the public charter school is not an LEA receiving funding
under Secs. 300.711-300.714, or a school that is part of an LEA
receiving funding under Secs. 300.711-300.714, the SEA is responsible
for ensuring that the requirements of this part are met.
(2) Paragraph (d)(1) of this section does not preclude a State from
assigning initial responsibility for ensuring the requirements of this
part are met to another entity; however, the SEA must maintain the
ultimate responsibility for ensuring compliance with this part,
consistent with Sec. 300.600.
(Authority: 20 U.S.C. 1413(a)(5))
Sec. 300.313 Children experiencing developmental delays.
(a) Use of term developmental delay. (1) A State that adopts the
term developmental delay under Sec. 300.7(b) determines whether it
applies to children aged 3 through 9, or to a subset of that age range
(e.g., ages 3 through 5).
(2) A State may not require an LEA to adopt and use the term
developmental delay for any children within its jurisdiction.
(3) If an LEA uses the term developmental delay for children
described in Sec. 300.7(b), the LEA must conform to both the State's
definition of that term and to the age range that has been adopted by
the State.
(4) If a State does not adopt the term developmental delay, an LEA
may not independently use that term as a basis for establishing a
child's eligibility under this part.
(b) Use of individual disability categories. (1) Any State or LEA
that elects to use the term developmental delay for children aged 3
through 9 may also use one or more of the disability categories
described in Sec. 300.7 for any child within that age range if it is
determined, through the evaluation conducted under Secs. 300.530-
300.536, that the child has an impairment described in Sec. 300.7, and
because of that impairment needs special education and related
services.
(2) The State or LEA shall ensure that all of the child's special
education and related services needs that have been identified through
the evaluation described in paragraph (b)(1) of this section are
appropriately addressed.
(c) Common definition of developmental delay. A State may adopt a
common definition of developmental delay for use in programs under
Parts B and C of the Act.
(Authority: 20 U.S.C. 1401(3)(A) and (B))
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--
(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. 300.340-300.350.
(Authority: 20 U.S.C. 1414(a), (b), and (c))
Sec. 300.321 Reevaluations.
Each public agency shall ensure that--
(a) A reevaluation of each child with a disability is conducted in
accordance with Sec. 300.536; and
(b) The results of any reevaluations are addressed by the child's
IEP team under Secs. 300.340-300.349 in reviewing and, as appropriate,
revising the child's IEP.
(Authority: 20 U.S.C. 1414(a)(2))
[[Page 12440]]
Secs. 300.322-300.324 [Reserved]
Individualized Education Programs
Sec. 300.340 Definitions related to IEPs.
(a) Individualized education program. As used in this part, the
term individualized education program or IEP means a written statement
for a child with a disability that is developed, reviewed, and revised
in a meeting in accordance with Secs. 300.341-300.350.
(b) Participating agency. As used in Sec. 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), 1412(a)(10)(B))
Sec. 300.341 Responsibility of SEA and other public agencies for IEPs.
(a) The SEA shall ensure that each public agency--
(1) Except as provided in Secs. 300.450-300.462, develops and
implements an IEP for each child with a disability served by that
agency; and
(2) Ensures that an IEP is developed and implemented for each
eligible child placed in or referred to a private school or facility by
the public agency.
(b) Paragraph (a) of this section applies to--
(1) The SEA, if it is involved in providing direct services to
children with disabilities, in accordance with Sec. 300.370(a) and
(b)(1); and
(2) Except as provided in Sec. 300.600(d), the other public
agencies described in Sec. 300.2, including LEAs and other State
agencies that provide special education and related services either
directly, by contract, or through other arrangements.
(Authority: 20 U.S.C. 1412(a)(4), (a)(10)(B))
Sec. 300.342 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public
agency shall have an IEP in effect for each child with a disability
within its jurisdiction.
(b) Implementation of IEPs. Each public agency shall ensure that--
(1) An IEP--
(i) Is in effect before special education and related services are
provided to an eligible child under this part; and
(ii) Is implemented as soon as possible following the meetings
described under Sec. 300.343;
(2) The child's IEP is accessible to each regular education
teacher, special education teacher, related service provider, and other
service provider who is responsible for its implementation; and
(3) Each teacher and provider described in paragraph (b)(2) of this
section is informed of--
(i) His or her specific responsibilities related to implementing
the child's IEP; and
(ii) The specific accommodations, modifications, and supports that
must be provided for the child in accordance with the IEP.
(c) IEP or IFSP for children aged 3 through 5. (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. 300.341-
300.346 and Secs. 300.349-300.350, 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) Effective date for new requirements. All IEPs developed,
reviewed, or revised on or after July 1, 1998 must meet the
requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1414(d)(2)(A) and (B), Pub. L. 105-17, sec.
201(a)(2)(A), (C)
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
Sec. 300.342(c), an IFSP).
(b) Initial IEPs; provision of services. (1) Each public agency
shall ensure that within a reasonable period of time following the
agency's receipt of parent consent to an initial evaluation of a
child--
(i) The child is evaluated; and
(ii) If determined eligible under this part, special education and
related services are made available to the child in accordance with an
IEP.
(2) In meeting the requirement 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 IEPs. 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 Sec. 300.536;
(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. 1413(a)(1), 1414(d)(4)(A))
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 of the child, or if
appropriate, at least one special education provider of the child;
(4) A representative of the public agency 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
public agency;
(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 to attend his or her IEP meeting if a purpose of
the meeting will be the consideration of--
(i) The student's transition services needs under
Sec. 300.347(b)(1);
(ii) The needed transition services for the student under
Sec. 300.347(b)(2); or
(iii) Both.
(2) If the student does not attend the IEP meeting, the public
agency shall
[[Page 12441]]
take other steps to ensure that the student's preferences and interests
are considered.
(3)(i) In implementing the requirements of Sec. 300.347(b)(2), 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.
(c) Determination of knowledge and special expertise. The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section shall be made by the
party (parents or public agency) who invited the individual to be a
member of the IEP.
(d) Designating a public agency representative. A public agency may
designate another public agency member of the IEP team to also serve as
the agency representative, if the criteria in paragraph (a)(4) of this
section are satisfied.
(Authority: 20 U.S.C. 1401(30), 1414(d)(1)(A)(7), (B))
Sec. 300.345 Parent participation.
(a) Public agency responsibility--general. 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) Information provided to parents. (1) The notice required under
paragraph (a)(1) of this section must--
(i) Indicate the purpose, time, and location of the meeting and who
will be in attendance; and
(ii) Inform the parents of the provisions in Sec. 300.344(a)(6) and
(c) (relating to the participation of other individuals on the IEP team
who have knowledge or special expertise about the child).
(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); 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)(2);
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(c) Other methods to ensure parent participation. If neither parent
can attend, the public agency shall use other methods to ensure parent
participation, including individual or conference telephone calls.
(d) Conducting an IEP meeting without a parent in attendance. 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) Use of interpreters or other action, as appropriate. The public
agency shall take whatever action is necessary to ensure that the
parent understands the proceedings at the IEP meeting, including
arranging for an interpreter for parents with deafness or whose native
language is other than English.
(f) Parent copy of child's IEP. The public agency shall give the
parent a copy of the child's IEP at no cost to the parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
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;
(ii) The results of the initial or most recent evaluation of the
child; and
(iii) As appropriate, the results of the child's performance on any
general State or district-wide assessment programs.
(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 those 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 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 paragraphs (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 the determination of--
(1) Appropriate positive behavioral interventions and strategies
for the child; and
(2) Supplementary aids and services, program modifications or
supports for school personnel that will be provided for the child,
consistent with Sec. 300.347(a)(3).
[[Page 12442]]
(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))
Sec. 300.347 Content of IEP.
(a) General. The IEP for each child with a disability 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 (i.e., the same curriculum as for
nondisabled children); 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 (i.e., the same curriculum as for nondisabled
children), or for preschool children, as appropriate, to participate in
appropriate activities; 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 section;
(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. The IEP must include--
(1) For each student with a disability beginning at age 14 (or
younger, if determined appropriate by the IEP team), 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
(2) 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.
(c) Transfer of rights. In a State that transfers rights at the age
majority, 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))
Sec. 300.348 Agency responsibilities for transition services.
(a) If a participating agency, other than the public agency, fails
to provide the transition services described in the IEP in accordance
with Sec. 300.347(b)(1), the public agency shall reconvene the IEP team
to identify alternative strategies to meet the transition objectives
for the student 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 IEPs. (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 Secs. 300.346 and 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 IEPs. (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 IEP 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))
Sec. 300.350 IEP--accountability.
(a) Provision of services. Subject to paragraph (b) of this
section, each public agency must--
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(1) Provide special education and related services to a child with
a disability in accordance with the child's IEP; and
(2) Make a good faith effort to assist the child to achieve the
goals and objectives or benchmarks listed in the IEP.
(b) Accountability. 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. However, the Act does not prohibit a State or public agency
from establishing its own accountability systems regarding teacher,
school, or agency performance.
(c) Construction--parent rights. Nothing in this section limits a
parent's right to ask for revisions of the child's IEP or to invoke due
process procedures if the parent feels that the efforts required in
paragraph (a) of this section are not being made.
(Authority: 20 U.S.C. 1414(d)); Cong. Rec. at H7152 (daily ed., July
21, 1975))
Direct Services 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) SEA responsibility if an LEA does not apply for Part B funds.
(1) If an LEA elects not to apply for its Part B allotment, the SEA
must use those funds to ensure that FAPE is available to all eligible
children residing in the jurisdiction of the LEA.
(2)(i) If the local allotment is not sufficient to meet the purpose
described in paragraph (b)(1) of this section, the SEA must ensure
compliance with Secs. 300.121(a) and 300.300(a).
(ii) Consistent with Sec. 300.301(a), the [State; SEA] may use
whatever funding sources are available in the State to implement
paragraph (b)(2)(i) of this section.
(c) SEA administrative procedures. (1) 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.
(2) 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))
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 SEA 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 (local capacity building).
(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 mediators, hearing officers, and surrogate parents, and
public information and parent training activities relating to FAPE for
children with disabilities.
(c) Of the funds an SEA retains under paragraph (a) of this
section, the SEA may use the funds directly, or distribute them to LEAs
on a competitive, targeted, or formula basis.
(Authority: 20 U.S.C. 1411(f)(3))
Sec. 300.371 [Reserved]
Sec. 300.372 Nonapplicability of requirements that prohibit
commingling and supplanting of funds.
A State may use funds it retains under Sec. 300.602 without regard
to--
(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 (CSPD)
Sec. 300.380 General CSPD requirements.
(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
[[Page 12444]]
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 the State
will--
(a) 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) 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) 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) 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 a program of preparation;
(e) 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) 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) 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) 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) Insure that 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) 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))
Secs. 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 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 State educational agency.
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; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to
education provided by the SEA and LEAs (including the requirements of
this part); and
(c) 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 State educational agency.
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))
Children With Disabilities Enrolled by Their Parents in Private
Schools When FAPE Is at Issue
Sec. 300.403 Placement of children by parents if FAPE is at issue.
(a) General. 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 FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency shall
include that child in the population whose needs are addressed
consistent with Secs. 300.450-300.462.
(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. 300.500-300.517.
(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 preschool, 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 and that the private placement is appropriate. A
[[Page 12445]]
parental placement may be found to be appropriate by a hearing officer
or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
(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.
(a) Each LEA shall locate, identify, and evaluate all private
school children with disabilities, including religious-school children
residing in the jurisdiction of the LEA, in accordance with
Secs. 300.125 and 300.220. The activities undertaken to carry out this
responsibility for private school children with disabilities must be
comparable to activities undertaken for children with disabilities in
public schools.
(b) Each LEA shall consult with appropriate representatives of
private school children with disabilities on how to carry out the
activities described in paragraph (a) of this section.
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.452 Provision of services--basic requirement.
(a) General. 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.
(b) SEA Responsibility--services plan. Each SEA shall ensure that,
in accordance with paragraph (a) of this section and Secs. 300.454-
300.456, a services plan is developed and implemented for each private
school child with a disability who has been designated to receive
special education and related services under this part.
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.453 Expenditures.
(a) Formula. To meet the requirement of Sec. 300.452(a), each LEA
must spend on providing special education and related services to
private school children with disabilities--
(1) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under section 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
(2) 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.
(b) Child count. (1) Each LEA shall--
(i) Consult with representatives of private school children in
deciding how to conduct the annual count of the number of private
school children with disabilities; and
(ii) Ensure that the count is conducted on December 1 or the last
Friday of October of each year.
(2) The child count must be used to determine the amount that the
LEA must spend on providing special education and related services to
private school children with disabilities in the next subsequent fiscal
year.
(c) Expenditures for child find may not be considered. Expenditures
for child find activities described in Sec. 300.451 may not be
considered in determining whether the LEA has met the requirements of
paragraph (a) of this section.
(d) Additional services permissible. State and local educational
agencies 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.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.454 Services determined.
(a) No individual right to special education and related services.
(1) 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.
(2) 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), and (c) of this section.
(b) Consultation with representatives of private school children
with disabilities. (1) General. 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--
(i) Which children will receive services under Sec. 300.452;
(ii) What services will be provided;
(iii) How and where the services will be provided; and
(iv) How the services provided will be evaluated.
[[Page 12446]]
(2) 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.
(3) Timing. The consultation required by paragraph (b)(1) 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.
(4) Decisions. The LEA shall make the final decisions with respect
to the services to be provided to eligible private school children.
(c) Services plan for each child served under Secs. 300.450-
300.462. If a child with a disability is enrolled in a religious or
other private school and will receive special education or related
services from an LEA, the LEA shall--
(1) Initiate and conduct meetings to develop, review, and revise a
services plan for the child, in accordance with Sec. 300.455(b); and
(2) Ensure that a representative of the religious or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 1412(a)(10)(A))
Sec. 300.455 Services provided.
(a) General. (1) The services provided to private school children
with disabilities must be provided by personnel meeting the same
standards as personnel providing services in the public schools.
(2) Private school children with disabilities may receive a
different amount of services than children with disabilities in public
schools.
(3) No private school child with a disability is entitled to any
service or to any amount of a service the child would receive if
enrolled in a public school.
(b) Services provided in accordance with a services plan. (1) Each
private school child with a disability who has been designated to
receive services under Sec. 300.452 must have a services plan that
describes the specific special education and related services that the
LEA will provide to 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.
(2) The services plan must, to the extent appropriate--
(i) Meet the requirements of Sec. 300.347, with respect to the
services provided; and
(ii) Be developed, reviewed, and revised consistent with
Secs. 300.342-300.346.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.456 Location of services; transportation.
(a) On-site. Services provided to private school children with
disabilities may be provided on-site at a child's private school,
including a religious school, to the extent consistent with law.
(b) Transportation. (1) General. (i) If necessary for the child to
benefit from or participate in the services provided under this part, a
private school child with a disability must be provided
transportation--
(A) From the child's school or the child's home to a site other
than the private school; and
(B) From the service site to the private school, or to the child's
home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation from the
child's home to the private school.
(2) Cost of transportation. The cost of the transportation
described in paragraph (b)(1)(i) of this section 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))
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 services plan.
(b) Due process applicable. The procedures in Secs. 300.504-300.515
do apply to complaints that an LEA has failed to meet the requirements
of Sec. 300.451, including the requirements of Secs. 300.530-300.543.
(c) State complaints. Complaints that an SEA or LEA has failed to
meet the 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 education and related services 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 school 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 section 611 or 619 of the Act
to pay for the services of an employee of a private school to provide
services under Secs. 300.450-300.462 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--
[[Page 12447]]
(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
(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))
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.
[[Page 12448]]
(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-
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
(iii)(A) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at anytime.
(B) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not negate an action that has occurred after the consent
was given and before the consent was revoked).
(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; 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))
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 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) A meeting 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.
A meeting 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 make reasonable efforts 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, upon request for
an independent educational evaluation, information about where an
independent educational evaluation may be obtained, and the agency
criteria applicable for independent educational evaluations as set
forth in paragraph (e) of this section.
(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. (1) 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.
(2) If a parent requests an independent educational evaluation at
public expense, the public agency must, without unnecessary delay,
either--
(i) Initiate a hearing under Sec. 300.507 to show that its
evaluation is appropriate; or
(ii) Ensure that an independent educational evaluation is provided
at public expense, unless the agency
[[Page 12449]]
demonstrates in a hearing under Sec. 300.507 that the evaluation
obtained by the parent did not meet agency criteria.
(3) 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.
(4) If a parent requests an independent educational evaluation, the
public agency may ask for the parent's reason why he or she objects to
the public evaluation. However, the explanation by the parent may not
be required and the public agency may not unreasonably delay either
providing the independent educational evaluation at public expense or
initiating a due process hearing to defend the public evaluation.
(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, to the extent
those criteria are consistent with the parent's right to an independent
educational 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))
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; and
(7) Sources for parents to contact to obtain assistance in
understanding the provisions of this part.
(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 public agency 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, and the State
complaint procedures available under Secs. 300.660-300.662 relating
to--
(1) Independent educational evaluation;
(2) Prior written notice;
(3) Parental consent;
(4) Access to educational records;
(5) Opportunity to present complaints to initiate due process
hearings;
(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;
(13) Attorneys' fees; and
(14) 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. The notice required under
paragraph (a) of this section must meet the requirements of
Sec. 300.503(c).
(Authority: 20 U.S.C. 1415(d))
Sec. 300.505 Parental consent.
(a) General. (1) Subject to paragraphs (a)(3), (b) and (c) of this
section, informed parent consent must be obtained before--
(i) Conducting an initial evaluation or reevaluation; and
(ii) Initial provision of special education and related services to
a child with a disability.
(2) Consent for initial evaluation may not be construed as consent
for initial placement described in paragraph (a)(1)(ii) of this
section.
[[Page 12450]]
(3) Parental consent is not required before--
(i) Reviewing existing data as part of an evaluation or a
reevaluation; or
(ii) Administering a test or other evaluation that is administered
to all children unless, before administration of that test or
evaluation, consent is required of parents of all children.
(b) Refusal. If the parents of a 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. (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 Sec. 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 use a parent's refusal to
consent to one service or activity under paragraphs (a) and (d) of this
section to deny the parent or child any other service, benefit, or
activity of the public agency, except as required by this part.
(Authority: 20 U.S.C. 1415(b)(3); 1414(a)(1)(C) and (c)(3))
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 that, 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. 300.507, 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)(i) 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.
(ii) If a mediator is not selected on a random (e.g., a rotation)
basis from the list described in paragraph (b)(2)(i) of this section,
both parties must be involved in selecting the mediator and agree with
the selection of the individual who will mediate.
(3) The State shall bear the cost of the mediation process,
including the costs of meetings described in paragraph (d) 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. (1) An individual who serves as a
mediator under this part--
(i) May not be an employee of--
(A) Any LEA or any State agency described under Sec. 300.194; or
(B) An SEA that is providing direct services to a child who is the
subject of the mediation process; and
(ii) Must not have a personal or professional conflict of interest.
(2) A person who otherwise qualifies as a mediator is not an
employee of an LEA or State agency described under Sec. 300.194 solely
because he or she is paid by the agency to serve as a mediator.
(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))
Sec. 300.507 Impartial due process hearing; parent notice.
(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).
(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 or refused 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.
[[Page 12451]]
(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))
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 business 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. (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. 300.509 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
(vi) Give a copy of the written, or, at the option of the parents,
electronic findings of fact and decisions 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. 300.512.
(Authority: 20 U.S.C. 1415(g); H. R. Rep. No. 94-664, at p. 49
(1975))
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), and any party aggrieved by the
findings and decision under Sec. 300.510(b), 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
[[Page 12452]]
(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)(1) Funds under Part B of the Act may not be used to pay
attorneys' fees or costs of a party related to an action or proceeding
under section 615 of the Act and subpart E of this part.
(2) Paragraph (b)(1) of this section does not preclude a public
agency from using funds under Part B of the Act for conducting an
action or proceeding under section 615 of the Act.
(c) A court awards reasonable attorney's fees under section
615(i)(3) of the Act consistent with the following:
(1) Determination of amount of attorneys' fees. Fees awarded under
section 615(i)(3) of the Act must be based on rates prevailing in the
community in which the action or proceeding arose for the kind and
quality of services furnished. No bonus or multiplier may be used in
calculating the fees awarded under this subsection.
(2) Prohibition of attorneys' fees and related costs for certain
services. (i) Attorneys' fees may not be awarded and related costs may
not be reimbursed in any action or proceeding under section 615 of the
Act for services performed subsequent to the time of a written offer of
settlement to a parent if--
(A) The offer is made within the time prescribed by Rule 68 of the
Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the
relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any meeting of
the IEP team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the discretion of
the State, for a mediation described in Sec. 300.506 that is conducted
prior to the filing of a request for due process under Secs. 300.507 or
300.520-300.528.
(3) Exception to prohibition on attorneys' fees and related costs.
Notwithstanding paragraph (c)(2) of this section, an award of
attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the
settlement offer.
(4) Reduction of amount of attorneys' fees. Except as provided in
paragraph (c)(5) of this section, the court reduces, accordingly, the
amount of the attorneys' fees awarded under section 615 of the Act, if
the court finds that--
(i) The parent, during the course of the action or proceeding,
unreasonably protracted the final resolution of the controversy;
(ii) The amount of the attorneys' fees otherwise authorized to be
awarded unreasonably exceeds the hourly rate prevailing in the
community for similar services by attorneys of reasonably comparable
skill, reputation, and experience;
(iii) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(iv) The attorney representing the parent did not provide to the
school district the appropriate information in the due process
complaint in accordance with Sec. 300.507(c).
(5) Exception to reduction in amount of attorneys' fees. The
provisions of paragraph (c)(4) of this section do not apply in any
action or proceeding if the court finds that the State or local agency
unreasonably protracted the final resolution of the action or
proceeding or there was a violation of section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))
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 under
Sec. 300.507, 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
conducted by the SEA or a State 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))
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. 300.20) 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) Except as provided in paragraph (c)(3) of this section, 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.
(3) A public agency may select as a surrogate a person who is an
employee of a nonpublic agency that only provides non-educational care
for the child and who meets the standards in
[[Page 12453]]
paragraphs (c)(2)(ii) and (iii) of this section.
(d) Non-employee requirement; compensation. A person who otherwise
qualifies to be a surrogate parent under paragraph (c) 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 student with a
disability reaches the age of majority under State law that applies to
all students (except for a student 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 student; and
(2) All rights accorded to parents under Part B of the Act transfer
to students 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 (a)(2) of this section, the agency shall notify the
individual and the parents of the transfer of rights.
(b) Special rule. If, under State law, a State has a mechanism to
determine that a student with a disability, who has reached the age of
majority under State law that applies to all children and has not been
determined incompetent under State law, does not have the ability to
provide informed consent with respect to his or her educational
program, 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. 300.519 Change of placement for disciplinary removals.
For purposes of removals of a child with a disability from the
child's current educational placement under Secs. 300.520-300.529, a
change of placement occurs if--
(a) The removal is for more than 10 consecutive school days; or
(b) The child is subjected to a series of removals that constitute
a pattern because they cumulate to more than 10 school days in a school
year, and because of factors such as the length of each removal, the
total amount of time the child is removed, and the proximity of the
removals to one another.
(Authority: 20 U.S.C. 1415(k))
Sec. 300.520 Authority of school personnel.
(a) School personnel may order--
(1)(i) To the extent removal would be applied to children without
disabilities, the removal of a child with a disability from the child's
current placement for not more than 10 consecutive school days for any
violation of school rules, and additional removals of not more than 10
consecutive school days in that same school year for separate incidents
of misconduct (as long as those removals do not constitute a change of
placement under Sec. 300.519(b));
(ii) After a child with a disability has been removed from his or
her current placement for more than 10 school days in the same school
year, during any subsequent days of removal the public agency must
provide services to the extent required under Sec. 300.121(d); 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)(1) Either before or not later than 10 business days after
either first removing the child for more than 10 school days in a
school year or commencing a removal that constitutes a change of
placement under Sec. 300.519, including the action described in
paragraph (a)(2) of this section--
(i) 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 removal described in paragraph (a) of
this section, the agency shall convene an IEP meeting to develop an
assessment plan.
(ii) If the child already has a behavioral intervention plan, the
IEP team shall meet to review the plan and its implementation, and,
modify the plan and its implementation as necessary, to address the
behavior.
(2) As soon as practicable after developing the plan described in
paragraph (b)(1)(i) of this section, and completing the assessments
required by the plan, the LEA shall convene an IEP meeting to develop
appropriate behavioral interventions to address that behavior and shall
implement those interventions.
(c)(1) If subsequently, a child with a disability who has a
behavioral intervention plan and who has been removed from the child's
current educational placement for more than 10 school days in a school
year is subjected to a removal that does not constitute a change of
placement under Sec. 300.519, the IEP team members shall review the
behavioral intervention plan and its implementation to determine if
modifications are necessary.
(2) If one or more of the team members believe that modifications
are needed, the team shall meet to modify the plan and its
implementation, to the extent the team determines necessary.
(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 a substance that is legally possessed or used
under the supervision of 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))
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;
[[Page 12454]]
(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
that is proposed by school personnel who have consulted with the
child's special education teacher, meets the requirements of
Sec. 300.522(b).
(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 interim alternative educational setting referred
to in Sec. 300.520(a)(2) must be determined by the IEP team.
(b) Additional requirements. Any interim alternative educational
setting in which a child is placed under Secs. 300.520(a)(2) or 300.521
must--
(1) Be selected so as to enable the child to continue to progress
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 to address the behavior
described in Secs. 300.520(a)(2) or 300.521, that are designed to
prevent the behavior from recurring.
(Authority: 20 U.S.C. 1415(k)(3))
Sec. 300.523 Manifestation determination review.
(a) General. If an action is contemplated regarding behavior
described in Secs. 300.520(a)(2) or 300.521, or involving a removal
that constitutes a change of placement under Sec. 300.519 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
provided the procedural safeguards notice described in Sec. 300.504;
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) 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 in a meeting.
(c) Conduct of review. In carrying out a review described in
paragraph (a) of this section, the IEP team and other qualified
personnel may determine that the behavior of the child was not a
manifestation of the child's disability only if the IEP team and other
qualified personnel--
(1) First consider, 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 determine 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.
(d) Decision. If the IEP team and other qualified personnel
determine that any of the standards in paragraph (c)(2) of this section
were not met, the behavior must be considered a manifestation of the
child's disability.
(e) 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).
(f) Deficiencies in IEP or placement. If, in the review in
paragraphs (b) and (c) of this section, a public agency identifies
deficiencies in the child's IEP or placement or in their
implementation, it must take immediate steps to remedy those
deficiencies.
(Authority: 20 U.S.C. 1415(k)(4))
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(d), 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 Sec. 300.121(d).
(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. Except as
provided in Sec. 300.526, Sec. 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))
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 under
Secs. 300.520-300.528, the parent may request a hearing.
(2) The State or local educational agency shall arrange for an
expedited hearing in any case described in paragraph (a)(1) of this
section if a hearing is 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(d).
(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 or an appeal regarding
a disciplinary action 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 agency or local educational agency agree
otherwise.
[[Page 12455]]
(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.
(4) The procedure in paragraph (c) of this section may be repeated,
as necessary.
(Authority: 20 U.S.C. 1415(k)(7))
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 paragraph (b) of this section) 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 does not know how to write 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, in accordance with Sec. 300.7;
(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 in accordance with the agency's
established child find or special education referral system.
(c) Exception. A public agency would not be deemed to have
knowledge under paragraph (b) of this section if, as a result of
receiving the information specified in that paragraph, the agency--
(1) Either--
(i) Conducted an evaluation under Secs. 300.530-300.536, and
determined that the child was not a child with a disability under this
part; or
(ii) Determined that an evaluation was not necessary; and
(2) Provided notice to the child's parents of its determination
under paragraph (c)(1) of this section, consistent with Sec. 300.503.
(d) 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 paragraphs (b) and (c) 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 (d)(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, which can
include suspension or expulsion without educational services.
(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) Meet the requirements of Sec. 300.509, except that a State may
provide that the time periods identified in Secs. 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
(2) Be conducted by a due process hearing officer who satisfies the
requirements of Sec. 300.508.
(b)(1) Each State shall establish a timeline for expedited due
process hearings that results in a written decision being mailed to the
parties within 45 days of the public agency's receipt of the request
for the hearing, without exceptions or extensions.
(2) The timeline established under paragraph (b)(1) of this section
must be the same for hearings requested by parents or public agencies.
(c) 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.
(d) The decisions on expedited due process hearings are appealable
consistent with Sec. 300.510.
(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)(1) 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.
(2) An agency reporting a crime under this section may transmit
copies of the child's special education and disciplinary records only
to the extent that the transmission is permitted by the Family
Educational Rights and Privacy Act.
(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
[[Page 12456]]
implements procedures that meet the requirements of Secs. 300.531-
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 the following
requirements are met:
(a)(1) Tests and other evaluation materials used to assess a child
under Part B of the Act--
(i) Are selected and administered so as not to be discriminatory on
a racial or cultural basis; and
(ii) Are provided and administered in the child's native language
or other mode of communication, unless it is clearly not feasible to do
so; and
(2) Materials and procedures used to assess a child with limited
English proficiency are selected and administered to ensure that they
measure the extent to which the child has a disability and needs
special education, rather than measuring the child's English language
skills.
(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, and information related
to enabling the child to be involved in and progress in the general
curriculum (or for a preschool child, to participate in appropriate
activities), 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.
(c)(1) 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.
(2) If an assessment is not conducted under standard conditions, a
description of the extent to which it varied from standard conditions
(e.g., the qualifications of the person administering the test, or the
method of test administration) must be included in the evaluation
report.
(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) In evaluating each child with a disability under Secs. 300.531-
300.536, the evaluation is sufficiently comprehensive to identify all
of the child's special education and related services needs, whether or
not commonly linked to the disability category in which the child has
been classified.
(i) 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.
(j) 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. 1412(a)(6)(B), 1414(b)(2) and (3))
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 group that includes the individuals described in
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) Conduct of review. The group described in paragraph (a) of this
section may conduct its review without a meeting.
(c) 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.
(d) 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, for purposes of services under this part, the child
continues to be a child with a disability.
(2) The public agency is not required to conduct the assessment
described in paragraph (d)(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))
Sec. 300.534 Determination of eligibility
(a) Upon completing the administration of tests and other
evaluation materials--
(1) A group 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 eligible under this part
if--
(1) The determinant factor for that eligibility determination is--
[[Page 12457]]
(i) Lack of instruction in reading or math; or
(ii) Limited English proficiency; and
(2) The child does not otherwise meet the eligibility criteria
under Sec. 300.7(a).
(c)(1) 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.
(2) The evaluation described in paragraph (c)(1) of this section is
not required before the termination of a student's eligibility under
Part B of the Act due to graduation with a regular high school diploma,
or exceeding the age eligibility for FAPE under State law.
(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, parent input, 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))
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. 300.532-300.535, 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: Sec. 5(b), Pub. L. 94-142)
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: Sec. 5(b), Pub. L. 94-142)
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: Sec. 5(b), Pub. L. 94-142)
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: Sec. 5(b), Pub. L. 94-142)
Least Restrictive Environment (LRE)
Sec. 300.550 General LRE requirements.
(a) Except as provided in Sec. 300.311(b) and (c), a State shall
demonstrate to the satisfaction of the Secretary that the 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. 300.26 (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
[[Page 12458]]
itinerant instruction) to be provided in conjunction with regular class
placement.
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.552 Placements.
In determining the educational placement of a child with a
disability, including a preschool 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;
(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; and
(e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications
in the general curriculum.
(Authority: 20 U.S.C. 1412(a)(5))
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))
Sec. 300.554 Children in public or private institutions.
Except as provided in Sec. 300.600(d), an SEA must ensure that
Sec. 300.550 is effectively implemented, including, if necessary,
making arrangements with public and private institutions (such as a
memorandum of agreement or special implementation procedures).
(Authority: 20 U.S.C. 1412(a)(5))
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--
(a) Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
(b) 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).
(c) 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 pursuant to Secs. 300.507
and 300.521-300.528, 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
[[Page 12459]]
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 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) Except as to disclosures addressed in Sec. 300.529(b) for which
parental consent is not required by Part 99, 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))
Sec. 300.574 Children's rights.
(a) 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.
(b) 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.
(c) 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.
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
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.
[[Page 12460]]
(Authority: 20 U.S.C. 1412(a)(8), 1417(c))
Sec. 300.576 Disciplinary information.
(a) The State may require that a public agency 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.
(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 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 the State's eligibility 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.
[[Page 12461]]
(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 counse--
(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.
(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
[[Page 12462]]
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 a referral for enforcement.
(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)
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
[[Page 12463]]
the State if the Secretary provides the requested waiver.
(e) Following the hearing, the Secretary, based on all submitted
evidence, will provide a waiver, in whole or in part, 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) 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
(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 students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons.
(Authority: 20 U.S.C. 1412(a)(11))
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 12464]]
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))
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)(A))
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))
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.
(a) General. The State advisory panel shall--
(1) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
(2) Comment publicly on any rules or regulations proposed by the
State regarding the education of children with disabilities;
(3) Advise the SEA in developing evaluations and reporting on data
to the Secretary under section 618 of the Act;
(4) Advise the SEA in developing corrective action plans to address
findings identified in Federal monitoring reports under Part B of the
Act; and
(5) Advise the SEA in developing and implementing policies relating
to the coordination of services for children with disabilities.
(b) Advising on eligible students with disabilities in adult
prisons. The advisory panel also shall advise 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.
(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 announced
enough in advance of the meeting to afford interested parties a
reasonable opportunity to attend. 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.
(a) General. Each SEA shall adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of Sec. 300.662 by--
(i) Providing for the filing of a complaint with the SEA; and
(ii) 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
(2) Widely disseminating to parents and other interested
individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities, the State's procedures under Secs. 300.660-
300.662.
(b) Remedies for denial of appropriate services. In resolving a
complaint in
[[Page 12465]]
which it has found a failure to provide appropriate services, an SEA,
pursuant to its general supervisory authority under Part B of the Act,
must address:
(1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child; and
(2) Appropriate future provision of services for all children with
disabilities.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.661 Minimum State complaint procedures.
(a) Time limit; minimum procedures. Each SEA shall include in its
complaint procedures a time limit of 60 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 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) Time extension; final decision; implementation. The SEA's
procedures described in paragraph (a) of this section also must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if exceptional circumstances exist with respect to a
particular complaint; and
(2) Include procedures for effective implementation of the SEA's
final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section, and due process hearings
under Secs. 300.507 and 300.520-300.528. (1) If a written complaint is
received that is also the subject of a due process hearing under
Sec. 300.507 or Secs. 300.520-300.528, or contains multiple issues, of
which one or more are 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
using the time limit and procedures described in paragraphs (a) and (b)
of this section.
(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--
(i) The hearing decision is binding; and
(ii) The SEA must inform the complainant to that effect.
(3) A complaint alleging a public agency's failure to implement a
due process decision must be resolved by the SEA.
(Authority: 20 U.S.C. 1221e-3)
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. 1221e-3)
Subpart G--Allocation of Funds; Reports
Allocations
Sec. 300.700 Special definition of the term ``State''.
For the purposes of Secs. 300.701, and 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, the freely associated States, and the Secretary of the Interior
under Secs. 300.715 and 300.717-300.719, the Secretary allocates the
remaining amount among the States in accordance with paragraph (b) of
this section and Secs. 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
[[Page 12466]]
Friday in October, of the fiscal year for which the funds were
appropriated.
(Authority: 20 U.S.C. 1411(d))
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 section 611 of the Act 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 section 611 of the Act 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) Allocations under Sec. 300.707 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; or
(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. 300.703 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
[[Page 12467]]
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).
(2) Base payment adjustments. For any fiscal year after the base
year fiscal year--
(i) If a new LEA is created, the State shall divide the base
allocation determined under paragraph (b)(1) of this section for the
LEAs that would have been responsible for serving children with
disabilities now being served by the new LEA, among the new LEA and
affected LEAs based on the relative numbers of children with
disabilities ages 3 through 21, or ages 6 through 21 if a State has had
its payment reduced under Sec. 300.706(b)(2), currently provided
special education by each of the LEAs;
(ii) If one or more LEAs are combined into a single new LEA, the
State shall combine the base allocations of the merged LEAs; and
(iii) If, for two or more LEAs, geographic boundaries or
administrative responsibility for providing services to children with
disabilities ages 3 through 21 change, the base allocations of affected
LEAs shall be redistributed among affected LEAs based on the relative
numbers of children with disabilities ages 3 through 21, or ages 6
through 21 if a State has had its payment reduced under
Sec. 300.706(b)(2), currently provided special education by each
affected LEA.
(3) 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 each 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.
(iii) For the purposes of making grants under this section, States
must apply on a uniform basis across all LEAs the best data that are
available to them on the numbers of children enrolled in public and
private elementary and secondary schools and the numbers of children
living in poverty.
(Authority: 20 U.S.C. 1411(g)(2))
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 no less than--
(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 that subpart for fiscal
year 1994; and
(2) May use funds under Sec. 300.602(a) 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 an 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 and Sec. 300.716.
(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 paragraphs (b) and (c) 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
[[Page 12468]]
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 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) of
the Act. 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 section
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 Part B of the Act;
(2) An assurance that, notwithstanding any other provision of Part
B of the Act, 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))
Sec. 300.751 Annual report of children served--information required in
the report.
(a) For any year the SEA shall include in its report a table that
shows 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--
(1) Aged 3 through 5;
(2) Aged 6 through 17; and
(3) Aged 18 through 21.
(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.
[[Page 12469]]
(c) Reports must also include the number of those children with
disabilities aged 3 through 21 for each year of age (3, 4, 5, etc.)
within each disability category, as defined in the definition of
``children with disabilities'' in Sec. 300.7; and
(d) The Secretary may permit the collection of the data in
paragraph (c) of this section through sampling.
(e) The SEA may not report a child under paragraph (c) of this
section under more than one disability category.
(f) If a child with a disability has more than one disability, the
SEA shall report that child under paragraph (c) of this section in
accordance with the following procedure:
(1) If a child has only two disabilities and those disabilities are
deafness and blindness, and the child is not reported as having a
developmental delay, that child must be reported under the category
``deaf-blindness''.
(2) A child who has more than one disability and is not reported as
having deaf-blindness or as having a developmental delay must be
reported under the category ``multiple disabilities''.
(Authority: 20 U.S.C. 1411(d)(2); 1418(a) and (b))
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 under
Sec. 300.751(a) 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--
(1) Provides them with both special education and related services
that meet State standards;
(2) Provides them only with special education, if a related service
is not required, that meets State standards; or
(3) In the case of children with disabilities enrolled by their
parents in private schools, provides them with special education or
related services under Secs. 300.452-300.462 that meet State standards.
(b) The SEA may not include children with disabilities in its
report who are receiving special education funded solely by the Federal
Government, including children served by the Department of Interior,
the Department of Defense, or the Department of Education. However, the
State may count children covered under Sec. 300.184(c)(2).
(Authority: 20 U.S.C. 1411(d)(2); 1417(b))
Sec. 300.754 Annual report of children served--other responsibilities
of the SEA.
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))
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 facilities under 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)
Appendix A to Part 300--Notice of Interpretation
I. Involvement and Progress of Each Child With a Disability in the
General Curriculum
1. What are the major Part B IEP requirements that govern the
involvement and progress of children with disabilities in the
general curriculum?
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?
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 review, and
revision of the IEPs, for children age 3 through 5 who are receiving
special education and related services?
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?
II. Involvement of Parents and Students
5. What is the role of the parents, including surrogate parents,
in decisions regarding the educational program of their children?
6. What are the Part B requirements regarding the participation
of a student (child) with a disability in an IEP meeting?
7. Must the public agency inform the parents of who will be at
the IEP meeting?
8. Do parents have the right to a copy of their child's IEP?
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?
[[Page 12470]]
10. Does Part B require that public agencies inform parents
regarding the educational progress of their children with
disabilities?
III. Preparing Students With Disabilities for Employment and Other
Post-School Experiences
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), and a statement of ``needed transition
services'' beginning at age 16 (Sec. 300.347(b)(2)?
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. 300.29, 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?
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?
IV. Other Questions Regarding Implementation of Idea
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?
15. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an
LEA?
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?
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?
18. What timelines apply to the development and implementation
of an initial IEP for a child with a disability?
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?
20. How frequently must a public agency conduct meetings to
review, and if appropriate revise, the IEP for each child with a
disability?
21. May IEP meetings be audio or video-tape-recorded?
22. Who can serve as the representative of the public agency at
an IEP meeting?
23. For a child with a disability being considered for initial
placement in special education, which teacher or teachers should
attend the IEP meeting?
24. What is the role of a regular education teacher in the
development, review, and revision of the IEP for a child who is, or
may be, participating in the regular education environment?
25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
26. How should a public agency determine which regular education
teacher and special education teacher will members of the IEP team
for a particular child with a disability?
27. 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 on the IEP team?
28. Do public agencies and parents have the option of having any
individual of their choice attend a child's IEP meeting as
participants on their child's IEP team?
29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
30. Must related services personnel attend IEP meetings?
31. Must the public agency ensure that all services specified in
a child's IEP are provided?
32. Is it permissible for an agency to have the IEP completed
before the IEP meeting begins?
33. Must a public agency include transportation in a child's IEP
as a related service?
34. 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. 300.24?
35. Must the IEP specify the amount of services or may it simply
list the services to be provided?
36. Under what circumstances is a public agency required to
permit a child with a disability to use a school-purchased assistive
technology device in the child's home or in another setting?
37. Can the IEP team also function as the group making the
placement decision for a child with a disability?
38. If a child's IEP includes behavioral strategies to address a
particular behavior, can a child ever be suspended for engaging in
that behavior?
39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision determine
that placement in the regular classroom is inappropriate for that
child?
40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his or
her classroom or school for misconduct?
Authority: Part B of the Individuals with Disabilities Education
Act (20 U.S.C. 1401, et seq.), unless otherwise noted.
Individualized Education Programs (IEPS) and Other Selected
ImplementatioN Issues
Interpretation of IEP and Other selected Requirements under Part
B of the Individuals with Disabilities Education Act (IDEA; Part B)
Introduction
The IEP requirements under Part B of the IDEA emphasize the
importance of three core concepts: (1) the involvement and progress
of each child with a disability in the general curriculum including
addressing the unique needs that arise out of the child's
disability; (2) the involvement of parents and students, together
with regular and special education personnel, in making individual
decisions to support each student's (child's) educational success,
and (3) the preparation of students with disabilities for employment
and other post-school activities.
The first three sections of this Appendix (I-III) provide
guidance regarding the IEP requirements as they relate to the three
core concepts described above. Section IV addresses other questions
regarding the development and content of IEPs, including questions
about the timelines and responsibility for developing and
implementing IEPs, participation in IEP meetings, and IEP content.
Section IV also addresses questions on other selected requirements
under IDEA.
I. Involvement and Progress of Each Child With a Disability 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 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. [Section
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. (The term ``general
curriculum,'' as used in these regulations, including this Appendix,
refers to the curriculum that is used with nondisabled children.)
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.
In many cases, children with disabilities will need appropriate
supports in order to successfully progress in the general
curriculum, participate in State and district-wide assessment
programs, achieve the measurable goals in their IEPs, and be
educated together with their nondisabled peers. Accordingly, the Act
requires the IEP team to determine, and the public agency to
[[Page 12471]]
provide, the accommodations, modifications, supports, and
supplementary aids and services, needed by each child with a
disability to successfully be involved in and progress in the
general curriculum achieve the goals of the IEP, and successfully
demonstrate his or her competencies in State and district-wide
assessments.
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 child's disability affects the child's participation in
appropriate activities * * *'' (``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.)
The IEP team's determination of how each child's disability
affects the child's involvement and progress in the general
curriculum is a primary consideration in the development of the
child's IEP. In assessing children with disabilities, school
districts may use a variety of assessment techniques to determine
the extent to which these children can be involved and progress in
the general curriculum, such as criterion-referenced tests, standard
achievement tests, diagnostic tests, other tests, or any combination
of the above.
The purpose of using these assessments is to determine the
child's present levels of educational performance and areas of need
arising from the child's disability so that approaches for ensuring
the child's involvement and progress in the general curriculum and
any needed adaptations or modifications to that curriculum can be
identified.
Measurable Annual Goals, including Benchmarks or Short-term
ojectives
Measurable annual goals, including benchmarks or short-term
objectives, are critical 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 (1) can develop strategies that will be most effective in
realizing those goals and (2) must develop either measurable,
intermediate steps (short-term objectives) or major milestones
(benchmarks) that will enable parents, students, and educators to
monitor progress during the year, and, if appropriate, to revise the
IEP consistent with the student's instructional needs.
The strong emphasis in Part B 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.
As noted above, each annual goal must include either short-term
objectives or benchmarks. The purpose of both is to enable a child's
teacher(s), parents, and others involved in developing and
implementing the child's IEP, to gauge, at intermediate times during
the year, how well the child is progressing toward achievement of
the annual goal. IEP teams may continue to develop short-term
instructional objectives, that generally break the skills described
in the annual goal down into discrete components. The revised
statute and regulations also provide that, as an alternative, IEP
teams may develop benchmarks, which can be thought of as describing
the amount of progress the child is expected to make within
specified segments of the year. Generally, benchmarks establish
expected performance levels that allow for regular checks of
progress that coincide with the reporting periods for informing
parents of their child's progress toward achieving the annual goals.
An IEP team may use either short term objectives or benchmarks or a
combination of the two depending on the nature of the annual goals
and the needs of the child.
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 (LRE) 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 participates with nondisabled children in
nonacademic and extracurricular services and activities
(Sec. 300.553).
All services and educational placements under Part B must be
individually determined in light of each child's unique abilities
and needs, to reasonably promote the child's educational success.
Placing children with disabilities in this manner should enable each
disabled child to meet high expectations in the future.
Although Part B requires that a child with a disability not be
removed from the regular educational environment if the child's
education can be achieved satisfactorily in regular classes with the
use of supplementary aids and services, Part B's LRE principle is
intended to ensure that a child with a disability is served in a
setting where the child can be educated successfully. Even though
IDEA does not mandate regular class placement for every disabled
student, IDEA presumes that the first placement option considered
for each disabled student by the student's placement team, which
must include the parent, is the school the child would attend if not
disabled, with appropriate supplementary aids and services to
facilitate such placement. Thus, before a disabled child can be
placed outside of the regular educational environment, the full
range of supplementary aids and services that if provided would
facilitate the student's placement in the regular classroom setting
must be considered. Following that consideration, if a determination
is made that particular disabled student cannot be educated
satisfactorily in the regular educational environment, even with the
provision of appropriate supplementary aids and services, that
student then could be placed in a setting other than the regular
classroom. Later, if it becomes apparent that the child's IEP can be
carried out in a less restrictive setting, with the provision of
appropriate supplementary aids and services, if needed, Part B would
require that the child's placement be changed from the more
restrictive setting to a less restrictive setting. In all cases,
placement decisions must be individually determined on the basis of
each child's abilities and needs, and not solely on factors such as
category of disability, significance of disability, availability of
special education and related services, configuration of the service
delivery system, availability of space, or administrative
convenience. Rather, each student's IEP forms the basis for the
placement decision.
Further, a student need not fail in the regular classroom before
another placement can be considered. Conversely, IDEA does not
require that a student demonstrate achievement of a specific
performance level as a prerequisite for placement into a regular
classroom.
[[Page 12472]]
Participation in State or District-Wide 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 of student achievement), 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 (H. Rep. No. 105-95, p.
103 (1997); S. Rep. No. 105-17, p. 23 (1997)) and have important
expertise regarding the general curriculum and the general education
environment. Further, 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
(together with special education and related services personnel) in
implementing 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 each child with a disability (including
children who are educated in separate classrooms or schools) must
address how the child will be involved and progress in the general
curriculum. However, the Part B regulations recognize that some
children have other educational needs resulting from their
disability that also must be met, even though those needs are not
directly linked to participation in the general curriculum.
Accordingly, Sec. 300.347(a)(1)(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 (1) how the child will be
involved and progress in the general curriculum and what needs that
result from the child's disability must be met to facilitate that
participation; (2) whether the child has any other educational needs
resulting from his or her disability that also must be met; and (3)
what special education and other services and supports must be
described in the child's IEP to address both sets of needs
(consistent with Sec. 300.347(a)). For example, if the IEP team
determines that in order for a child who is deaf to participate in
the general curriculum he or she needs sign language and materials
which reflect his or her language development, those needs (relating
to the child's participation in the general curriculum) must be
addressed in the child's IEP. In addition, if the team determines
that the child also needs to expand his or her vocabulary in sign
language that service must also be addressed in the applicable
components of the child's IEP. The IEP team may also wish to
consider whether there is a need for members of the child's family
to receive training in sign language in order for the child to
receive FAPE.
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, review, and
revision of IEPs, 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 be a member of the IEP team, and, as
appropriate, participate in IEP meetings, 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 could 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
annual 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. If a child with
a disability needs only modifications or accommodations in order to
progress in an area of the general curriculum, the IEP does not need
to include a goal for that area; however, the IEP would need to
specify those modifications or accommodations.
Public agencies often require all children, including children
with disabilities, to demonstrate mastery in a given area of the
general curriculum before allowing them to progress to the next
level or grade in that area. Thus, in order to ensure that each
child with a disability can effectively demonstrate competencies in
an applicable area of the general curriculum, it is important for
the IEP team to consider the accommodations and modifications that
the child needs to assist him or her in demonstrating progress in
that area.
II. Involvement of Parents and Students
The Congressional Committee Reports on the IDEA Amendments of
1997 express the view that the Amendments provide an opportunity for
strengthening the role of parents, and emphasize that one of the
purposes of the Amendments is to expand opportunities for parents
and key public agency staff (e.g., 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 (H. Rep. 105-95, p. 82 (1997); S. Rep.
No. 105-17, p. 4 and 5 (1997)). Accordingly, the IDEA Amendments of
1997 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(a)(2)). Thus, parents must now be part of: (1)
the group that determines what additional data are needed as part of
an evaluation of their child (Sec. 300.533(a)(1)); (2) the team that
determines their child's eligibility (Sec. 300.534(a)(1)); and (3)
the group that makes decisions on the educational placement of their
child (Sec. 300.501(c)).
In addition, the concerns of parents and the 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)); and 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 also contain provisions that greatly
strengthen the involvement of students with disabilities in
decisions regarding their own futures, to facilitate movement from
school to post-school activities. For example, those amendments (1)
retained, essentially verbatim, the ``transition services''
requirements from the IDEA Amendments of 1990 (which provide that a
statement of needed transition services must be in the IEP of each
student with a disability, beginning no later than age 16); and (2)
significantly
[[Page 12473]]
expanded those provisions by adding a new annual requirement for the
IEP to include ``transition planning'' activities for students
beginning at age 14. (See section IV of this appendix for a
description of the transition services requirements and definition.)
With respect to student involvement in decisions regarding
transition services, Sec. 300.344(b) provides that (1) ``the public
agency shall invite a student with a disability of any age to attend
his or her IEP meeting if a purpose of the meeting will be the
consideration of--(i) The student's transition services needs under
Sec. 300.347(b)(1); or (ii) The needed transition services for the
student under Sec. 300.347(b)(2); or (iii) Both;'' and (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.'' (Sec. 300.344(b)(2)).
The IDEA Amendments of 1997 also give States the authority to
elect to transfer the rights accorded to parents under Part B to
each student with a disability upon reaching the age of majority
under State law (if the student has not been determined incompetent
under State law) (Sec. 300.517). (Part B requires that if the rights
transfer to the student, the public agency must provide any notice
required under Part B to both the student and the parents.) If the
State elects to provide for the transfer of rights from the parents
to the student at the age of majority, the IEP must, beginning at
least one year before a student reaches the age of majority under
State law, 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)).
The IDEA Amendments of 1997 also permit, but do not require,
States to establish a procedure for appointing the parent, or
another appropriate individual if the parent is not available, to
represent the educational interests of a student with a disability
who has reached the age of majority under State law and has not been
determined to be incompetent, but who is determined not to have the
ability to provide informed consent with respect to his or her
educational program.
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 regarding
the strengths of their child and express their concerns for
enhancing the education of their child; (2) participate in
discussions about the child's need for special education and related
services and supplementary aids and services; and (3) 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 previously noted in the introduction to section II of this
Appendix, Part B specifically provides that parents of children with
disabilities--
Have an opportunity to participate in meetings with
respect to the identification, evaluation, and educational placement
of their child, and the provision of FAPE to the child (including
IEP meetings) (Secs. 300.501(b), 300.344(a)(1), and 300.517;
Be part of the groups 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));
Have their concerns and the 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
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. 300.20) 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 (Sec. 300.515.)
6. What are the Part B requirements regarding the participation
of a student (child) with a disability in an IEP meeting?
If a purpose of an IEP meeting for a student with a disability
will be the consideration of the student's transition services needs
or needed transition services under Sec. 300.347(b)(1) or (2), or
both, the public agency must invite the student and, as part of the
notification to the parents 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. (See Sec. 300.344(b)).
Section Sec. 300.517 permits, but does not require, States to
transfer procedural rights under Part B from the parents to students
with disabilities who reach the age of majority under State law, if
they have not been determined to be incompetent under State law. If
those rights are to be 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, a child with a disability 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 would 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 inform the parents of 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 will be the consideration
of a student's transition services needs or needed transition
services under Sec. 300.347(b)(1) or (2) or both, 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 also must inform the parents of the right of
the parents and the agency to invite other individuals who have
knowledge or special expertise regarding the child, including
related services personnel as appropriate to be members of the IEP
team. (Sec. 300.345(b)(1)(ii).)
It also may be appropriate for the agency to ask the parents to
inform the agency of any individuals the parents will be bringing to
the meeting. Parents are encouraged to let the agency know whom they
intend to bring. Such cooperation can facilitate arrangements for
the meeting, and help ensure a productive, child-centered 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 a copy of the IEP at no cost to the parent.
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 (1)
child's needs and appropriate goals; (2) extent to which the child
will be involved in the general curriculum and participate in the
regular education environment and State and district-wide
assessments; and (3) services needed to support that involvement and
participation and to achieve agreed-upon goals. Parents are
considered equal partners with school personnel in making these
decisions, and the IEP team must consider the parents' concerns and
the information that they provide regarding their child in
developing, reviewing, and revising 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. It is not
appropriate to make IEP decisions based upon a majority ``vote.'' If
the team cannot reach consensus, the public agency must provide the
parents
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with prior written notice of the agency's proposals or refusals, or
both, regarding the child's educational program, and the parents
have the right to seek resolution of any disagreements 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, or to deny any
other rights afforded under Part B.
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 are 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 new requirements for
regularly informing parents about their child's educational
progress, as regularly as parents of nondisabled children are
informed of their child's 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 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.
One method that public agencies could use in meeting this
requirement would be to provide periodic report cards to the parents
of students with disabilities that include both (1) the grading
information provided for all children in the agency at the same
intervals; and (2) the specific information required by
Sec. 300.347(a)(7)(ii)(A) and (B).
Finally, the parents, as part of the IEP team, will participate
at least once every 12 months in a review of their child's
educational progress. Section 300.343(c) 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)).
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. Because many students receiving services under
IDEA will also receive services under the Rehabilitation Act, it is
important, in planning for their future, to consider the impact of
both statutes.
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.'' (H. Rep. No. 105-95, p. 82 (1997); S. Rep. No. 105-17,
p. 4 (1997)).
Thus, throughout their preschool, elementary, and secondary
education, the IEPs for children with disabilities must, to the
extent appropriate for each 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. Many students with disabilities will obtain
services through State vocational rehabilitation programs to ensure
that their educational goals are effectively implemented in post-
school activities. Services available through rehabilitation
programs are consistent with the underlying purpose of IDEA.
Although preparation for adult life is a key component of FAPE
throughout the educational experiences of students with
disabilities, Part B sets forth specific requirements related to
transition planning and transition services that must be implemented
no later than ages 14 and 16, respectively, and which require an
intensified focus on that preparation as these students 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)(2)?
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 and younger if appropriate, and updated
annually, each student's IEP must include:
``* * * 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)''
(Sec. 300.347(b)(1)(i)).
Beginning at age 16 (or younger, if determined appropriate by
the IEP team), each student's IEP must include:
``* * * a statement of needed transition services for the student,
including, if appropriate, a statement of the interagency
responsibilities or any needed linkages.'' (Sec. 300.347(b)(2)).
The Committee Reports on the IDEA Amendments of 1997 make clear
that the requirement added to the statute in 1997 that beginning at
age 14, and updated annually, 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 * * *'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep. No.
105-17, p. 22 (1997)). As clarified by the Reports, ``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.'' (H. Rep. No. 105-95, pp. 101-102 (1997); S. Rep.
No. 105-17, p. 22 (1997)). The Reports further explain 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.'' (H. Rep. No. 105-95, p. 102 (1997); S. Rep.
No. 105-17, p. 22 (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 services needs connected to technology
course work, while another student's statement of transition
services needs could describe why public bus transportation training
is important for future independence in the community.
Although the focus of the transition planning process may shift
as the student approaches graduation, the IEP team must discuss
specific areas beginning at least at the age of 14 years and review
these areas annually. As noted in the Committee Reports, a
disproportionate number of students with disabilities drop out of
school before they
[[Page 12475]]
complete their secondary education: ``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.'' (H. Rep. No. 105-95, p. 85 (1997),
S. Rep. No. 105-17, p. 5 (1997).)
To help reduce the number of students with disabilities that
drop out, it is important that the IEP team work with each student
with a disability and the student's family to select courses of
study that will be meaningful to the student's future and motivate
the student to complete his or her education.
This requirement is distinct from the requirement, at
Sec. 300.347(b)(2), 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. 300.29 to
mean:
* * * a coordinated set of activities for a student with a
disability that--(1) 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; (2) Is based on the individual student's needs,
taking into account the student's preferences and interests; and (3)
Includes--(i) Instruction; (ii) Related services; (iii) Community
experiences; (iv) The development of employment and other post-
school adult living objectives; and (v) If appropriate, acquisition
of daily living skills and functional vocational evaluation.
Thus, while Sec. 300.347(b)(1) requires that the IEP team begin
by age 14 to address the student's need for instruction that will
assist the student to prepare for transition, the IEP must include
by age 16 a statement of needed transition services under
Sec. 300.347(b)(2) that includes a ``coordinated set of activities *
* *, designed within an outcome-oriented process, that promotes
movement from school to post-school activities * * *.''
(Sec. 300.29) Section 300.344(b)(3) further requires that, in
implementing Sec. 300.347(b)(1), public agencies (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. 300.347(b)(2) 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. 300.29, 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)(2) 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. 300.29, regardless of whether the public
agency or some other agency will provide those services. Section
300.347(b)(2) specifically requires that the statement of needed
transition services include, ``* * * if appropriate, a statement of
the interagency responsibilities or any needed linkages.''
Further, the IDEA Amendments of 1997 also permit an LEA to use
up to five percent of the Part B funds it receives in any fiscal
year in combination with other amounts, which must include amounts
other than education funds, to develop and implement a coordinated
services system. These funds may be used for activities such as: (1)
linking IEPs under Part B and Individualized Family Service Plans
(IFSPs) under Part C, with Individualized Service Plans developed
under multiple Federal and State programs, such as Title I of the
Rehabilitation Act; and (2) developing and implementing interagency
financing strategies for the provision of services, including
transition services under Part B.
The need to include, as part of a student's 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 had agreed to provide.
If an agreed-upon service by another agency is not provided, the
public agency responsible for the student's education must implement
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 transition services objectives, 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 needs
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 public agency
does not fulfill its responsibility does not relieve the public
agency of its responsibility to ensure that FAPE is available to
each student with a disability. (Section 300.142(b)(2) specifically
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, without delay, 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 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 identify 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), and
must invite each of those agencies to the IEP meeting; and if an
agency invited to send a representative to a meeting does not do so,
the public agency must take other steps to obtain the participation
of that agency in the planning of any transition services.
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 how it will meet the requirements of
Sec. 300.344.
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 or after
the child begins to receive special education and related services?
Section 300.342(b)(1) requires that an IEP be ``in effect before
special education and related services are provided to an eligible
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. (Further, the child's placement must be based,
among other factors, on the child's IEP.)
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.
However, 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, following.)
b. Ensure that the parents agree to the interim placement before
it is carried out, and that they are involved throughout the
[[Page 12476]]
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 determining the 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. Thus, the SEA must ensure that every eligible 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 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. (See
Sec. 300.600(d)).
Although the SEA has flexibility in deciding the best means to
meet this obligation (e.g., through interagency 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 ensuring that the child's IEP is developed
and 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 ultimately 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 moves from one public agency to
another in the same State, the State and its public agencies have an
ongoing responsibility to ensure that FAPE is made available to that
child. This means that if a child moves to another public agency the
new agency is responsible for ensuring that the child has available
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. (The new public
agency is strongly encouraged to continue implementing the IEP
developed by the former public agency, if appropriate, especially if
the parents believe their child was progressing appropriately under
that IEP.)
Before the child's IEP is finalized, the new public agency may
provide interim services agreed to 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 develop a new IEP through appropriate
procedures 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 each public agency to ensure that
within a reasonable period of time following the agency's receipt of
parent consent to an initial evaluation of a child, the child is
evaluated and, if determined eligible, special education and related
services are made available to the child in accordance with an IEP.
The section further requires the agency to conduct a meeting to
develop an IEP for the child within 30 days of determining that the
child needs special education and related services.
Section 300.342(b)(2) provides that an IEP must 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 group of
qualified professionals and the parent'' (see Sec. 300.534(a)(1)) to
be a child with a disability, continue in the same meeting to
develop an IEP for the child and then to determine the child's
placement. However, the public agency must ensure that it meets: (1)
the requirements of Sec. 300.535 regarding eligibility decisions;
(2) all of the Part B requirements regarding meetings to develop
IEPs (including providing appropriate notification to the parents,
consistent with the requirements of Secs. 300.345, 300.503, and
300.504, and ensuring that all the required team members participate
in the development of the IEP, consistent with the requirements of
Sec. 300.344;) and (3) ensuring that the placement is made by the
required individuals, including the parent, as required by
Secs. 300.552 and 300.501(c).
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 review each child's IEP,
in order 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 also must 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 teacher feels that the child's IEP or placement is
not appropriate for the child, the teacher 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)). Public agencies should grant any reasonable parent
request for an IEP meeting. For example, if the parents question the
adequacy of services that are provided while their child is
suspended for short periods of time, it would be appropriate to
convene an IEP meeting.
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 a
change in the IEP may be necessary to ensure the provision of FAPE.
If a parent requests an IEP meeting because the parent believes
that a change is needed
[[Page 12477]]
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. 300.507(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, and the public
agency must inform parents about the availability of mediation.
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 that prohibits or limits the use
of recording 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. An SEA or school district
that adopts a rule regulating the tape recording of IEP meetings
also should ensure that it is uniformly applied.
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 public 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 public agency (Sec. 300.344(a)(4)).
Each public 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 requirements. It is important,
however, 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.
A public agency may designate another public agency member of
the IEP team to also serve as the agency representative, so long as
that individual meets the requirements of Sec. 300.344(a)(4).
23. For a child with a disability being considered for initial
provision of special education and related services, which teacher
or teachers should attend the IEP meeting?
A child's IEP team must include at least one of the child's
regular education teachers (if the child is, or may be participating
in the regular education environment) and at least one of the
child's special education teachers, 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 the 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)). At least one regular
education teacher is a required member of 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 requirements of Sec. 300.344(a)(3) can be met by either: (1)
a special education teacher of the child; or (2) another special
education provider of the child, 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 applicable State standards.
Sometimes more than one meeting is necessary in order to
finalize a child's IEP. In this process, if the special education
teacher or special education provider who will be working with the
child is identified, it would be useful to have that teacher or
provider participate in the meeting with the parents and other
members of the IEP team in finalizing the IEP. If this is not
possible, the public agency must ensure that the teacher or provider
has access to the child's IEP as soon as possible after it is
finalized and before beginning to work with the child.
Further, (consistent with Sec. 300.342(b)), the public agency
must ensure that each regular education teacher, special education
teacher, related services provider and other service provider of an
eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This requirement is crucial to ensuring
that each child receives FAPE in accordance with his or her IEP, and
that the IEP is appropriately and effectively implemented.
24. What is the role of a regular education teacher in the
development, review and revision of the IEP for a child who is, or
may be, participating in the regular education environment?
As required by Sec. 300.344(a)(2), the IEP team for a child with
a disability must include at least one regular education teacher of
the child if the child is, or may be, participating in the regular
education environment. Section 300.346(d) further specifies that 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 that will be
provided for the child, consistent with 300.347(a)(3)
(Sec. 300.344(d)).
Thus, while a regular education teacher must be a member of the
IEP team if the child is, or may be, participating in the regular
education environment, the teacher need not (depending upon the
child's needs and the purpose of the specific IEP team meeting) be
required to participate in all decisions made as part of the meeting
or to be present throughout the entire meeting or attend every
meeting. For example, the regular education teacher who is a member
of the IEP team must participate in discussions and decisions about
how to modify the general curriculum in the regular classroom to
ensure the child's involvement and progress in the general
curriculum and participation in the regular education environment.
Depending upon the specific circumstances, however, it may not
be necessary for the regular education teacher to participate in
discussions and decisions regarding, for example, the physical
therapy needs of the child, if the teacher is not responsible for
implementing that portion of the child's IEP.
In determining the extent of the regular education teacher's
participation at IEP meetings, public agencies and parents should
discuss and try to reach agreement on whether the child's regular
education teacher that is a member of the IEP team should be present
at a particular IEP meeting and, if so, for what period of time. The
extent to which it would be appropriate for the regular education
teacher member of the IEP team to participate in IEP meetings must
be decided on a case-by-case basis.
25. If a child with a disability attends several regular
classes, must all of the child's regular education teachers be
members of the child's IEP team?
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 would 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.
26. How should a public agency determine which regular education
teacher and special education teacher will be members of the IEP
team for a particular child with a disability?
The regular education teacher who serves as a member of a
child's IEP team should be a teacher who is, or may be, responsible
for implementing a portion of the IEP, so that the teacher can
participate in discussions about how best to teach the child.
If the child has more than one regular education teacher
responsible for carrying out a portion of the IEP, the LEA may
designate which teacher or teachers will serve as IEP team
member(s), taking into account the best interest of the child.
In a situation in which not all of the child's regular education
teachers are members of
[[Page 12478]]
the child's IEP team, the LEA is strongly encouraged to seek input
from the teachers who will not be attending. In addition,
(consistent with Sec. 300.342(b)), the LEA must ensure that each
regular education teacher (as well as each special education
teacher, related services provider, and other service provider) of
an eligible child under this part (1) has access to the child's IEP,
and (2) is informed of his or her specific responsibilities related
to implementing the IEP, and of the specific accommodations,
modifications and supports that must be provided to the child in
accordance with 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 regular
education teacher or other person knowledgeable about positive
behavior strategies at the IEP meeting. This is especially important
if the regular education teacher is expected to carry out portions
of the IEP.
Similarly, the special education teacher or provider of the
child who is a member of the child's IEP team 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 special
education teacher on the IEP team could be the speech-language
pathologist.
27. 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 on 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.
28. Do parents and public agencies have the option of inviting
any individual of their choice be participants on their child's IEP
team?
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).
Under Sec. 300.344(a)(6), these individuals are members of the IEP
team. This is a change from prior law, which provided, without
qualification, that parents or agencies could have other individuals
as members of the IEP team at the discretion of the parents or
agency.
Under Sec. 300.344(c), the determination as to whether an
individual has knowledge or special expertise, within the meaning of
Sec. 300.344(a)(6), shall be made by the parent or public agency who
has invited the individual to be a member of the IEP team.
Part B does not provide for including individuals such as
representatives of teacher organizations as part of an IEP team,
unless they are included because of knowledge or special expertise
regarding the child. (Because a representative of a teacher
organization would generally 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 be a member of the
IEP team or to otherwise participate in an IEP meeting.)
29. Can parents or public agencies bring their attorneys to IEP
meetings, and, if so under what circumstances? Are attorney's fees
available for parents' attorneys if the parents are prevailing
parties in actions or proceedings brought under Part B?
Section 300.344(a)(6) authorizes the addition to the IEP team of
other individuals at the discretion of the parent or the public
agency only if those other individuals have knowledge or special
expertise regarding the child. The determination of whether an
attorney possesses knowledge or special expertise regarding the
child would have to be made on a case-by-case basis by the parent or
public agency inviting the attorney to be a member of the team.
The presence of the agency's attorney could contribute to a
potentially adversarial atmosphere at the meeting. The same is true
with regard to the presence of an attorney accompanying the parents
at the IEP meeting. Even if the attorney possessed knowledge or
special expertise regarding the child (Sec. 300.344(a)(6)), an
attorney's presence would have the potential for creating an
adversarial atmosphere that would not necessarily be in the best
interests of the child.
Therefore, the attendance of attorneys at IEP meetings should be
strongly discouraged. Further, as specified in Section
615(i)(3)(D)(ii) of the Act and Sec. 300.513(c)(2)(ii), Attorneys'
fees may not be awarded relating to any meeting of the IEP team
unless the 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.
30. 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-
language 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 Committee Reports 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.'' (H. Rep. No. 105-95, p. 103
(1997); S. Rep. No. 105-17, p. 23 (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.
A public agency must ensure that all individuals who are
necessary to develop an IEP that will meet the child's unique needs,
and ensure the provision of FAPE to the child, participate in the
child's IEP meeting.
31. 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. The agency 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 service(s) described in the child's IEP to
deny or delay the provision of FAPE to the child. (See Sec. 300.142,
Methods of ensuring services.)
32. 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.
Parents have the right to bring questions, concerns, and
recommendations to an IEP meeting as part of a full discussion, of
the child's needs and the services to be provided to meet those
needs before the IEP is finalized.
Public agencies must ensure that, if agency personnel bring
drafts of some or all of the IEP content to the IEP meeting, there
is a full discussion with the child's parents, before
[[Page 12479]]
the child's IEP is finalized, regarding drafted content and the
child's needs and the services to be provided to meet those needs.
33. Must a public agency include transportation in a child's IEP
as a related service?
As with other related services, 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 day care services.)
In determining whether to include transportation in a child's
IEP, and whether the child needs to receive transportation as a
related service, it would be appropriate to have at the IEP meeting
a person with expertise in that area. In making this determination,
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, as amended, 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 the child 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.
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.
34. 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. 300.24?
The 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.
These determinations must be made on an individual basis by each
child's IEP team.
35. 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 (Sec. 300.347(a)(6)).
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.
The amount of a special education or related service to be
provided to a child may be stated in the IEP as a range (e.g.,
speech therapy to be provided three times per week for 30-45 minutes
per session) only if the IEP team determines that stating the amount
of services as a range is necessary to meet the unique needs of the
child. For example, it would be appropriate for the IEP to specify,
based upon the IEP team's determination of the student's unique
needs, that particular services are needed only under specific
circumstances, such as the occurrence of a seizure or of a
particular behavior. A range may not be used because of personnel
shortages or uncertainty regarding the availability of staff.
36. Under what circumstances is a public agency required to
permit a child with a disability to use a school-purchased assistive
technology device in the child's home or in another setting?
Each child's IEP team must consider the child's need for
assistive technology (AT) in the development of the child's IEP
(Sec. 300.346(a)(2)(v)); and the nature and extent of the AT devices
and services to be provided to the child must be reflected in the
child's IEP (Sec. 300.346(c)).
A public agency must permit a child to use school-purchased
assistive technology devices at home or in other settings, if the
IEP team determines that the child needs access to those devices in
nonschool settings in order to receive FAPE (to complete homework,
for example).
Any assistive technology devices that are necessary to ensure
FAPE must be provided at no cost to the parents, and the parents
cannot be charged for normal use, wear and tear. However, while
ownership of the devices in these circumstances would remain with
the public agency, State law, rather than Part B, generally would
govern whether parents are liable for loss, theft, or damage due to
negligence or misuse of publicly owned equipment used at home or in
other settings in accordance with a child's IEP.
37. Can the IEP team also function as the group making the
placement decision for a child with a disability?
Yes, a public agency may use the IEP team to make the placement
decision for a child, so long as the group making the placement
decision meets the requirements of Secs. 300.552 and 300.501(c),
which requires that the placement decision be 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.
38. If a child's IEP includes behavioral strategies to address a
particular behavior, can a child ever be suspended for engaging in
that behavior?
If a child's behavior impedes his or her learning or that of
others, the IEP team, in developing the child's IEP, must consider,
if appropriate, development of strategies, including positive
behavioral interventions, strategies and supports to address that
behavior, consistent with Sec. 300.346(a)(2)(i). This means that in
most cases in which a child's behavior that impedes his or her
learning or that of others is, or can be readily anticipated to be,
repetitive, proper development of the child's IEP will include the
development of strategies, including positive behavioral
interventions, strategies and supports to address that behavior. See
Sec. 300.346(c). This includes behavior that could violate a school
code of conduct. A failure to, if appropriate, consider and address
these behaviors in developing and implementing the child's IEP would
constitute a denial of FAPE to the child. Of course, in appropriate
circumstances, the IEP team, which includes the child's parents,
might determine that the child's behavioral intervention plan
includes specific regular or alternative disciplinary measures, such
as denial of certain privileges or short suspensions, that would
result from particular infractions of school rules, along with
positive behavior intervention strategies and supports, as a part of
a comprehensive plan to address the child's behavior. Of course, if
short suspensions that are included in a child's IEP are being
implemented in a manner that denies the child access to the ability
to progress in the educational program, the child would be denied
FAPE.
Whether other disciplinary measures, including suspension, are
ever appropriate for behavior that is addressed in a child's IEP
will have to be determined on a case by case basis in light of the
particular circumstances of that incident. However, school personnel
may not use their ability to suspend a child for 10 days or less at
a time on multiple occasions in a school year as a means of avoiding
appropriately considering and addressing the child's behavior as a
part of providing FAPE to the child.
39. If a child's behavior in the regular classroom, even with
appropriate interventions, would significantly impair the learning
of others, can the group that makes the placement decision determine
that placement in the regular classroom is inappropriate for that
child?
The IEP team, in developing the IEP, is required to consider,
when appropriate, strategies, including positive behavioral
interventions, strategies and supports to address the behavior of a
child with a disability whose behavior impedes his or her learning
or that of others. If the IEP team determines that such supports,
strategies or interventions are necessary to address the behavior of
the child, those services must be included in the child's IEP. These
provisions are designed to foster increased participation of
children with disabilities in regular
[[Page 12480]]
education environments or other less restrictive environments, not
to serve as a basis for placing children with disabilities in more
restrictive settings.
The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires
careful consideration of whether the child can appropriately
function in the regular classroom if provided appropriate behavioral
supports, strategies and interventions. If the child can
appropriately function in the regular classroom with appropriate
behavioral supports, strategies or interventions, placement in a
more restrictive environment would be inconsistent with the least
restrictive environment provisions of the IDEA. If the child's
behavior in the regular classroom, even with the provision of
appropriate behavioral supports, strategies or interventions, would
significantly impair the learning of others, that placement would
not meet his or her needs and would not be appropriate for that
child.
40. May school personnel during a school year implement more
than one short-term removal of a child with disabilities from his or
her classroom or school for misconduct?
Yes. Under Sec. 300.520(a)(1), school personnel may order
removal of a child with a disability from the child's current
placement for not more than 10 consecutive school days for any
violation of school rules, and additional removals of not more than
10 consecutive school days in that same school year for separate
incidents of misconduct, as long as these removals do not constitute
a change of placement under Sec. 300.519(b). However, these removals
are permitted only to the extent they are consistent with discipline
that is applied to children without disabilities. Also, school
personnel should be aware of constitutional due process protections
that apply to suspensions of all children. Goss v. Lopez, 419 U.S.
565 (1975). Section 300.121(d) addresses the extent of the
obligation to provide services after a child with a disability has
been removed from his or her current placement for more than 10
school days in the same school year.
BILLING CODE: 4000-01-P
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BILLING CODE 4000-01-C
PART 303--EARLY INTERVENTION PROGRAM FOR INFANTS AND TODDLERS WITH
DISABILITIES
2. The authority citation for part 303 continues to read as
follows:
Authority: 20 U.S.C. 1431-1445, unless otherwise noted.
Sec. 303.1 [Amended]
3. Section 303.1 is amended by removing the word ``program'' in
paragraph (a), and adding, in its place, ``system.''
Sec. 303.4 [Amended]
4. Section 303.4 is amended by revising the authority citation to
read as follows:
(Authority: 20 U.S.C. 1419(h))
5. Section 303.5 is amended by adding ``, and'' at the end of
paragraph (a)(1)(vi), by revising paragraph (a)(3), and by revising the
authority citation to read as follows:
Sec. 303.5 Applicable regulations.
* * * * *
(a) * * *
(3) The following regulations in 34 CFR part 300 (Assistance to
States for the Education of Children with Disabilities Program):
Secs. 300.560-300.577, and Secs. 300.580-300.585.
* * * * *
(Authority: 20 U.S.C. 1401, 1416, 1417)
Secs. 303.6, 303.12, and 303.18 [Amended]
6. The note preceding Sec. 303.6 and following the heading
``Definitions'' is amended by removing the phrase ``'natural
environments'' in Sec. 303.12(b)(2)'' and adding, in its place,
```natural environments' in Sec. 303.18''.
7. Section 303.10 is revised to read as follows:
Sec. 303.10 Developmental delay.
As used in this part, ``developmental delay,'' when used with
respect to an individual residing in a State, has the meaning given to
that term under Sec. 303.300.
(Authority: 20 U.S.C. 1432(3))
Sec. 303.12 [Amended]
8. Section 303.12(d)(11) is amended by removing the reference to
``Sec. 303.22'' and by adding in its place ``Sec. 303.23''.
9. Section 303.19 is revised to read as follows:
Sec. 303.19 Parent.
(a) General. As used in this part, ``parent'' means--
(1) A natural or adoptive parent of a child;
(2) A guardian;
(3) A person acting in the place of a parent (such as a grandparent
or stepparent with whom the child lives, or a person who is legally
responsible for the child's welfare); or
(4) A surrogate parent who has been assigned in accordance with
Sec. 303.406.
(b) Foster parent. Unless State law prohibits a foster parent from
acting as a parent, a State may allow a foster parent to act as a
parent under Part C of the Act if--
(1) The natural parents' authority to make the decisions required
of parents under the Act has been extinguished under State law; and
(2) The foster parent--
(i) Has an ongoing, long-term parental relationship with the child;
(ii) Is willing to make the decisions required of parents under the
Act; and
(iii) Has no interest that would conflict with the interests of the
child.
(Authority: 20 U.S.C. 1401(19), 1431-1445)
10. Section 303.100 is amended by revising paragraph (d)(2) to read
as follows:
Sec. 303.100 Conditions of assistance.
* * * * *
(d) * * *
(2) A new interpretation is made of the Act by a Federal court or
the State's highest court; or
* * * * *
Sec. 303.140 [Amended]
11. In Sec. 303.140 paragraph (b) is amended by adding the words,
``in the State'' after ``services are available to all infants and
toddlers with disabilities''.
Sec. 303.145 [Amended]
12. Section 303.145 is amended by revising the heading for
paragraph (c) to
[[Page 12536]]
read ``Maintenance and implementation activities''; and by removing the
words ``planning, developing'' in paragraph (c)(1), and adding, in
their place, ``maintaining''. 3. Section 303.344 is amended by adding
``and'' after ``Sec. 303.12(b)'' in paragraph (d)(1)(ii), and by
revising paragraph (h)(1) to read as follows:
Sec. 303.344 Content of an IFSP.
* * * * *
(h) Transition from Part C services. (1) The IFSP must include the
steps to be taken to support the transition of the child, in accordance
with Sec. 303.148, to--
(i) Preschool services under Part B of the Act, to the extent that
those services are appropriate; or
(ii) Other services that may be available, if appropriate.
* * * * *
14. Section 303.403 is amended by removing the word ``and'' at the
end of paragraph (b)(2); by revising paragraph (b)(3); by adding a new
paragraph (b)(4); and by revising the authority citation to read as
follows:
Sec. 303.403 Prior notice; native language.
* * * * *
(b) * * *
(3) All procedural safeguards that are available under
Secs. 303.401-303.460 of this part; and
(4) The State complaint procedures under Secs. 303.510-303.512,
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))
15. Section 303.510 is revised to read as follows:
Sec. 303.510 Adopting complaint procedures.
(a) General. Each lead agency shall adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that any public agency
or private service provider is violating a requirement of Part C of the
Act or this Part by--
(i) Providing for the filing of a complaint with the lead agency;
and
(ii) At the lead agency's discretion, providing for the filing of a
complaint with a public agency and the right to have the lead agency
review the public agency's decision on the complaint; and
(2) 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. 303.510-303.512.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which it finds a failure to provide appropriate services,
a lead agency, pursuant to its general supervisory authority under Part
C of the Act, must address:
(1) How to remediate the denial of those services, including, as
appropriate, the awarding of monetary reimbursement or other corrective
action appropriate to the needs of the child and the child's family;
and
(2) Appropriate future provision of services for all infants and
toddlers with disabilities and their families.
(Authority: 20 U.S.C. 1435(a)(10))
16. Section 303.511 is revised to read as follows:
Sec. 303.511 An organization or individual may file a complaint.
(a) General. An individual or organization may file a written
signed complaint under Sec. 303.510. The complaint must include--
(1) A statement that the State has violated a requirement of part C
of the Act or the regulations in this part; and
(2) The facts on which the complaint is based.
(b) Limitations. The alleged violation must have occurred not more
than one year before the date that the complaint is received by the
public agency unless a longer period is reasonable because--
(1) The alleged violation continues for that child or other
children; or
(2) The complainant is requesting reimbursement or corrective
action for a violation that occurred not more than three years before
the date on which the complaint is received by the public agency.
(Authority: 20 U.S.C. 1435(a)(10))
17. Section 303.512 is revised to read as follows:
Sec. 303.512 Minimum State complaint procedures.
(a) Time limit, minimum procedures. Each lead agency shall include
in its complaint procedures a time limit of 60 calendar days after a
complaint is filed under Sec. 303.510(a) to--
(1) Carry out an independent on-site investigation, if the lead
agency 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 C 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 lead agency's final decision.
(b) Time extension; final decisions; implementation. The lead
agency's procedures described in paragraph (a) of this section also
must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if exceptional circumstances exist with respect to a
particular complaint; and
(2) Include procedures for effective implementation of the lead
agency's final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section, and due process hearings
under Sec. 303.420. (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 are 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 paragraphs (a) and (b) of
this section.
(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--
(i) The hearing decision is binding; and
(ii) The lead agency must inform the complainant to that effect.
(3) A complaint alleging a public agency's or private service
provider's failure to implement a due process decision must be resolved
by the lead agency.
(Authority: 20 U.S.C. 1435(a)(10))
18. Section 303.520 is amended by adding a new paragraph (d); and
revising the authority citation to read as follows:
Sec. 303.520 Policies related to payment for services.
* * * * *
(d) Proceeds from public or private insurance. (1) Proceeds from
public or
[[Page 12537]]
private insurance are not treated as program income for purposes of 34
CFR 80.25.
(2) If a public agency spends reimbursements from Federal funds
(e.g., Medicaid) for services under this part, those funds are not
considered State or local funds for purposes of the provisions
contained in Sec. 303.124.
(Authority: 20 U.S.C. 1432(4)(B), 1435(a)(10))
(Note: This attachment will not be codified in the Code of Federal
Regulations.)
Attachment 1--Analysis of Comments and Changes
The following is an analysis of the significant issues raised by
the public comments received on the NPRM published on October 22, 1997
(62 FR 55026), and a description of the changes made in the proposed
regulations since publication of the NPRM.
Except for relevant general comments relating to the overall NPRM,
which are discussed at the beginning of this analysis, specific
substantive issues are discussed under the subpart and section of the
regulations to which they pertain. References to subparts and section
numbers in this attachment are to those contained in the final
regulations.
This analysis generally does not address--
(a) Minor changes, including technical changes, made to the
language published in the NPRM;
(b) Suggested changes the Secretary is not legally authorized to
make under applicable statutory authority;
(c) The organizational structure of these regulations and the
extent to which statutory language is used; and
(d) Comments that express concerns of a general nature about the
Department or other matters that are not directly relevant to these
regulations, such as requests for information about innovative
instructional methods or matters that lie within the purview of State
and local decision-makers.
General Comments
Comment: Some commenters stated that the notes in the regulations
are extremely important because they provide additional information and
clarification. Other commenters expressed concerns about the extensive
use of notes throughout the NPRM and raised questions about their legal
status. Several of the commenters stated that the number of notes
should be dramatically reduced because they go well beyond
clarification, creating a new interpretation that differs from the
statutory language.
Many of the commenters stated that any note that is intended to be
a requirement should be incorporated into the text of the regulations.
Some of the commenters felt that all other notes that are not
requirements should be deleted or otherwise moved to a nonregulatory
format, such as a technical assistance document. Other commenters
indicated that notes should be used only for guidance and examples, or
clarifying information, including appropriate references to recent
legislative history.
Discussion: In light of the comments received, certain changes with
respect to notes in these final regulations are appropriate and should
be made. The Department does not regulate by notes. Therefore, the
substance of any note that should be a requirement should be
incorporated into the text of the regulations. Information that was
contained in a note that provides meaningful guidance is reflected in
the discussion of the relevant section of these regulations in this
Attachment so that the public will have access to the information.
Information in any note that is not considered to be useful should
simply be removed.
Changes: Consistent with the above discussion, all notes have been
removed as notes from these final regulations. The substance of any
note considered to be a requirement has been added to the text of the
regulations. Information in any note considered to provide clarifying
information or useful guidance has been incorporated into the
discussion of the applicable comments in this Attachment or, as
appropriate, in Appendix A (Notice of Interpretation on IEPs). Notes
that are no longer relevant have simply been deleted. A table is
included in attachment 3 that describes the disposition of all notes in
the NPRM.
Comment: A few commenters stated that the NPRM should have focused
only on implementing the IDEA Amendments of 1997, and expressed concern
that it was used to regulate on subjects addressed in previous policy
letters that should be published separately for public comment. These
commenters stated that the attempt to bring forward in the NPRM policy
letters that interpret prior law is inappropriate because the new law
has a goal of including children with disabilities in the general
curriculum and improving results for these children, in contrast to the
focus in prior law of simply providing disabled children access to
public schools.
Discussion: Publishing a separate NPRM on longstanding policy
letters is not in the best interests of the general public because it
would impose an added burden on the reviewers and would be inefficient,
ineffective, and very costly. In fact, by incorporating the positions
taken in these policy letters into the NPRM, they already have been
subjected to the public comment process. It also would be confusing
both to parents and public agencies if the longstanding policy
interpretations were not included in these final regulations, because
it would imply that the provisions were no longer in effect. Moreover,
it is important for parents, public agency staff, and others to be able
to review all proposed changes to the regulations at one time and in a
single context.
Although the new amendments place greater emphasis on the
participation of disabled children in the general curriculum and on
ensuring better results for these children, the essential rights and
protections in prior law, including the concept of the least
restrictive environment have been retained under the IDEA Amendments of
1997, and, in many respects, have been strengthened. Many of the
interpretations of prior law--including those relating to the rights
and protections afforded under the law--continue to be relevant to
implementing Part B. Therefore, it would be inappropriate to exclude
them from the final regulations.
Changes: None.
Comment: Some commenters stated that, in the preamble to the NPRM,
the characterization of prior law as focusing simply on ensuring access
to education is a misstatement and should be deleted. The commenters
indicated that the courts have traditionally acknowledged that disabled
children were entitled to participate fully in all educational programs
and services available to all other students, and added that a correct
interpretation of prior law is necessary because of pending and new
court cases.
Discussion: The broader interpretation of prior law raised by
commenters is the correct one. That characterization is reflected in
the definition of FAPE (that, among other things, FAPE includes
preschool, elementary, or secondary school education in the State), and
in the provisions under Secs. 300.304 (Full educational opportunity
goal) and 300.305 (Program options). The statement in the preamble,
however, was reflective of the status of the education of disabled
children prior to 1975--in which approximately one million of those
children were excluded from public education, and of the evolution of
the program over a 22-year period.
Experience and research over that period have demonstrated that, as
reflected in the statutory findings, the education of disabled children
can be
[[Page 12538]]
more effective by having higher expectations for those children, and
ensuring their access to the general curriculum, as well as other
findings (see section 601(c)(5) of the Act). Therefore, it is correct
to state that the 1997 amendments place greater emphasis on a results-
oriented approach related to improving educational results for disabled
children than was true under prior law.
Changes: None.
Comment: Commenters requested clarification relating to the
``reserved'' sections in the regulations, and indicated that if
regulatory language is inserted into those reserved sections, the
inserted language should be subjected to the same field input process
that was used for the rest of the regulations.
Discussion: The reserved sections are simply placeholders for
future regulations, if further regulations become necessary. Any
regulations that would be added to those reserved sections in the
future would be subject to notice and comment in accordance with the
Department's rulemaking procedures. These procedures include a 90-day
public comment period as required by section 607(a) of the Act.
Changes: None.
Subpart A
Purposes (Sec. 300.1)
Comment: Some commenters requested that Sec. 300.1 be amended to
include the new purposes under sections 601(d)(2) of the Act (relating
to the early intervention program for infants and toddlers with
disabilities under Part C of the Act), and 601(d)(3) (relating to
ensuring that educators and parents have the tools necessary to improve
educational results for children with disabilities).
Some commenters expressed their support of the emphasis on
independent living and preparation for employment in the Act and
regulations. A few commenters stated that the note following Sec. 300.1
(that includes the definition of ``independent living'' from the
Rehabilitation Act of 1973), sets forth the spirit of these
regulations. Other commenters requested that the note be revised to
clarify that the purpose of the note is not to disturb the longstanding
understanding of FAPE for children with disabilities, and that
maximization of educational services is not required under Part B.
Several commenters recommended that the note be deleted. Some of
these commenters stated that it is misleading and confusing to include
the purposes of other statutes in these regulations, that it implies
that school districts are responsible for some rehabilitation services,
and that ``independent living'' is a term of art, and not just an
educational enterprise.
Discussion: Section 300.1 includes the statutory purposes that are
specifically related to the Assistance for Education of All Children
with Disabilities Program under Part B of the Act and to these
regulations, which are codified at 34 CFR Part 300. Therefore, the list
of statutory purposes contained in Sec. 300.1 should be retained.
Although statutory purposes relating to Part C have not been
included in these regulations, these purposes were included as part of
the regulations in 34 CFR Part 303 implementing Part C published in the
Federal Register on April 14, 1998 (63 FR 18289). In addition, although
the second purpose in section 601(d)(3) of the Act is relevant to the
successful implementation of these regulations, (i.e., ensuring that
educators and parents have the tools necessary to improve educational
results for children with disabilities) this statutory purpose is
directed at the discretionary programs under Part D of the Act, and not
to the requirements under Part B.
Independent living is an important concept in the education of
children with disabilities, as set forth in Sec. 300.1(a). However,
because the note goes beyond the stated purposes of these regulations
and focuses on a provision from another law, it is confusing, and the
note should be deleted.
Changes: The note following Sec. 300.1 has been deleted. A
discussion of independent living has been incorporated into Appendix A
with respect to transition services.
Applicability to State, Local, and Private Agencies (Sec. 300.2)
Comment: A few commenters recommended that charter schools be
included in the list of public agencies to which these regulations
apply, because these schools are sometimes treated by State law as
political subdivisions, and, thus, would be subject to the requirements
of these regulations. Other commenters emphasized the importance of
clarifying the formal obligations of agencies other than educational
agencies, particularly with respect to mental health services.
Discussion: Because of the increasing attention that charter
schools are receiving, it is appropriate to specifically clarify that
under the statute public charter schools that are not otherwise already
included as LEAs or ESAs and are not a school of an LEA or ESA in the
list of political subdivisions that are subject to the requirements of
these regulations. Charter schools are also addressed in other sections
of these regulations (see analysis of comments under Secs. 300.18,
300.22, 300.241, and 300.312).
A change is not necessary to address responsibility of an agency
other than an educational agency for services necessary for ensuring a
free appropriate public education including mental health services.
Section 300.142 addresses interagency agreements and the requirements
of section 612(a)(12) of the Act regarding methods of ensuring
services. See discussion of Sec. 300.142 in this Analysis.
In light of the general decision to remove all notes from these
final regulations, the note following this section of the NPRM should
be deleted. The substance of this note, regarding the applicability of
these regulations to each public agency that has direct or delegated
authority to provide special education and related services in a State
receiving Part B funds, regardless of that agency's receipt of Part B
funds, should be incorporated into the text of this regulation.
Changes: Section 300.2 has been amended by redesignating the
existing paragraph (b) as paragraph (b)(1), by adding public charter
schools that are not otherwise included as LEAs or ESAs and are not a
school of an LEA or ESA to the list of entities to which these
regulations apply, and by removing the note to this section of the NPRM
and adding the substance of that note as paragraph (b)(2) of this
section.
Definitions--General Comments
Comment: Commenters recommended that the final regulations should
(1) include a master list of all terms used in these regulations and
the specific section in which each term is defined; (2) add other
relevant statutory terms in the IDEA that were omitted from the NPRM
(e.g., institution of higher education, nonprofit, parent organization,
parent training and information center, and SEA etc.); (3) update
Sec. 300.28 to add ``elementary school,'' ``nonprofit,'' and ``SEA'' to
the list of relevant terms defined in the Education Department General
Administrative Regulations (EDGAR); (4) define terms used in two or
more subparts of these regulations, such as consent, direct services,
evaluation, personally identifiable, private school children with
disabilities, and public expense; and (5) that the master list of
definitions in note 1 to this section of the NPRM was not complete
because it omitted the definitions of the thirteen terms defined within
the definition of
[[Page 12539]]
``child with a disability,'' the fifteen terms defined within the
definition of ``related services,'' and the four terms defined within
the definition of ``special education.''
Some commenters requested that the following definitions be
deleted: ``comparable services'' (Sec. 300.455); ``extended school
year'' (Sec. 300.309); ``meetings'' (Sec. 300.501); and ``financial
costs'' (Sec. 300.142(e)), because none of the terms is defined in the
statute, and the regulations should not exceed the statute. Other
commenters recommended adding definitions of ``change of placement;''
``competent eighteen year old;'' ``developmental delay;'' ``school
day;'' ``extra curricular activities;'' ``functional behavioral
assessment;'' ``impeding behavior;'' ``other agency personnel;''
``paraprofessional;'' ``positive behavior support or intervention
plan;'' and ``positive behavioral intervention strategies.''
A few commenters expressed concern with the use of ``adversely
affects educational performance'' throughout Sec. 300.7(b) as
potentially limiting the services that are provided to disabled
children, especially those children who are academically gifted but who
still need transition services to postsecondary education, and
recommended that a definition of this term be added to the regulations.
Discussion: It would make the regulations more useful to parents
and others by: (1) Adding to Subpart A the definitions of terms of
general applicability (e.g., consent, evaluation, and personally
identifiable) that are used in two or more subparts of these final
regulations, and (2) adding to Sec. 300.30, previously Sec. 300.28 of
the NPRM, relevant terms used in these regulations that are defined in
EDGAR (e.g., elementary school, secondary school, nonprofit, and State
educational agency).
It also would make the regulations more useful to include an
alphabetical master list of the definitions of terms used in this part,
and the specific section in which each term is defined, including terms
of general applicability (e.g., FAPE and IEP), terms used in a single
section or subpart (e.g., ``illegal drug'' and ``weapon''), and
individual terms used in the definitions of ``child with a
disability,'' ``related services,'' and ``special education.'' These
regulations should include an index that identifies the key terms used
in the regulations and lists the specific section in which each term is
used; and the master list of definitions of the terms should be
included in the index.
A definition of the term ``parent training and information center''
should not be added, but the statutory definition of that term in
section 602(21) of the Act is referenced in the sections of these
regulations that use the term (Sec. 300.506(d)(1)(i) (relating to
mediation) and Sec. 300.589(c)(4) (relating to waiver of the
nonsupplanting requirement)), and the term ``parent training centers'',
which has been dropped from Sec. 300.660(b), would be replaced by a
reference to the statutory term.
The disposition of the terms defined in Secs. 300.142(e), 300.309,
300.455, and 300.501 of the NPRM is addressed in each of the pertinent
sections of this attachment.
With respect to the term ``adversely affects educational
performance,'' in order for a child to be eligible for services under
Part B, the child must meet the two-pronged test established under
Sec. 300.7(a), which reflects the statutory definition in section
602(3) of the Act. This means that the child has one of the listed
conditions that adversely affects educational performance, and who,
because of that condition, needs special education and related
services. Revising this language in the manner suggested by commenters
could result in an unwarranted expansion of eligibility under Part B.
It should be pointed out that a child who is academically gifted but
who may not be progressing at the rate desired is not automatically
eligible under Part B. Neither is the child automatically ineligible.
Rather, determinations as to a child's eligibility for services under
Part B must be made on a case-by-case basis in accordance with
applicable evaluation procedures.
In light of the general decision to remove all notes from these
final regulations, Notes 1 and 2 following the subheading
``Definitions'' and immediately preceding Sec. 300.5 in the NPRM should
be deleted. Note 1 listed the terms defined in specific sections of the
NPRM. As stated earlier in this discussion, those terms should be
included in a master list of definitions in a newly-created index to
these final regulations. Note 2 contained abbreviations of common terms
used in these regulations (e.g. the use of ``FAPE'' for ``free
appropriate public education''). In lieu of listing those abbreviations
in a note, each term should be included parenthetically in the text of
the regulations as that term appears; and, thereafter, either the
abbreviation or the full term may be used interchangeably, depending on
the context in which it is used.
Changes: References to the terms defined in Sec. 300.500--
``consent,'' ``evaluation,'' and ``personally identifiable''--have been
added as Secs. 300.8, 300.12, and 300.21 of these final regulations.
Relevant terms from EDGAR referenced throughout these regulations have
been added to Sec. 300.30. Notes 1 and 2 immediately preceding
Sec. 300.5 have been removed. An index to these regulations have been
added as a new Appendix B, and a master list of the definitions of all
terms used in this part has been included in the index under the
heading ``Definitions of terms used under this part.'' The
abbreviations listed in Note 2 have been included in the text of the
regulations, as described in the above discussion.
Assistive Technology Devices and Services (Secs. 300.5 and 300.6)
Comment: Some commenters recommended that assistive technology
devices and services be listed as a related service under Sec. 300.22,
as well as defined separately under Secs. 300.5 and 300.6. Some
commenters also recommended changes that would alter the statutory
definitions of these terms. A few commenters requested that Secs. 300.5
and 300.6 be amended to add language clarifying that assistive
technology devices and services are only required for a disabled child
if necessary for the child to benefit from special education. A few
commenters stated that the regulations should clarify public agency
responsibility for providing personal devices, such as eyeglasses,
hearing aids, braces and medication, while other commenters recommended
that the regulations make explicit that public agencies are not
responsible for providing personally-prescribed devices under these
regulations. Commenters also requested that the regulations include
examples of assistive technology devices for children, including a
range of high to low technology devices, such as postural supports,
mobility aids, and positioning equipment. Commenters also requested
clarification on how school districts draw distinctions between a
child's need for an assistive technology device and a parent's desire
for the child to have the newest and best device on the market.
Discussion: As stated in the note following Sec. 300.6 of the NPRM,
the definitions of ``Assistive technology device'' and ``Assistive
technology service'' in sections 602(1) and 602(2) of the Act are
substantially identical to the definitions of those terms used in the
Technology-Related Assistance for Individuals with Disabilities Act of
1988, as amended (Tech Act). Since
[[Page 12540]]
Sec. Sec. 300.5-300.6 essentially adopt the statutory definitions of
these terms, no changes to these statutory definitions should be made
in these final regulations. However, consistent with Part B, the words
``child with a disability'' were substituted for the statutory
reference to individual with a disability found in the definitions
contained in the Tech Act. In addition, in light of the general
decision not to use notes in these final regulations, the note to
Sec. 300.6 of the NPRM should be removed.
Section 300.308 of these regulations specifies that an assistive
technology device or service is only required if it is determined,
through the IEP process, to be (1) special education, as defined in
Sec. 300.26, (2) related services, as defined in Sec. 300.24, or (3)
supplementary aids and services, as defined in Sec. 300.28. No further
clarification should be provided, and references to Sec. 300.308 should
not be included in the definitions of ``related services'' under
Sec. 300.24 or ``special education'' under Sec. 300.26. Section 300.308
is sufficient to explain how a determination about a child's need for
an assistive technology device or service is made.
As a general matter, public agencies are not responsible for
providing personal devices, such as eyeglasses or hearing aids or
braces, that a disabled child requires regardless of whether he or she
is attending school. However, if a child's IEP team specifies that a
child requires a personal device in order to receive FAPE, the public
agency must provide the device at no cost to the child's parents.
Consistent with section 612(a)(12) of the Act, public agencies that are
otherwise obligated under Federal or State law or assigned
responsibility under State policy or interagency agreement or other
mechanisms to provide or pay for any services that are also considered
special education or related services, including devices that are
necessary for ensuring FAPE, must fulfill that obligation or
responsibility, either directly or through contract or other
arrangement.
Regarding responsibilities relative to medication under Sec. 300.5,
medication is an excluded ``medical service,'' and is not the
responsibility of a public agency under these regulations; therefore,
the change suggested by commenters is not warranted.
Further examples of assistive technology are not necessary within
these regulations. Because the definitions of assistive technology
devices and services have been included in these regulations for over
five years and have been included in the Tech Act since 1988, most
public agencies should be informed about those devices and services for
purposes of implementing these regulations. Examples of assistive
technology devices and services and other relevant information may be
available through one of the technical assistance providers funded by
the National Institute on Disability and Rehabilitation Research in the
Office of Special Education and Rehabilitative Services (OSERS) or
other technical assistance providers funded by OSERS.
Changes: The note following Sec. 300.6 has been removed.
Comment: Some commenters asked for clarification that (1) the
statutory provision encompasses both a child's own assistive technology
needs (e.g., electronic note takers, cassette recorders, and speech
synthesizers), as well as access to general technology used by all
students, (2) a child with a disability may take assistive technology
devices home for use on homework and other assignments, as well as for
use in the community, and (3) school districts have continuing
responsibility for installation, repair, and maintenance of devices.
These commenters added that in order to fully benefit from assistive
technology, children with disabilities must be able to use it on all
school-work assignments, whether done in the classroom or at home or in
the community; and LEAs must ensure that children, their teachers, and
other personnel receive the necessary in-service instruction on the
operation and maintenance of technology. Other commenters requested
that the final regulations specify in the text of the regulations or in
a note (1) the right of children with disabilities to take devices home
or to other settings, as needed, and (2) the issue of ownership and
responsibility.
Discussion: The provision of assistive technology devices and
services is limited to those situations in which they are required in
order for a disabled child to receive FAPE. However, subject to this
limitation, commenters are correct that (1) ``assistive technology''
encompasses both a disabled child's own personal needs for assistive
technology devices (e.g., electronic note-takers, cassette recorders,
etc), as well as access to general technology devices used by all
students, and (2) if an eligible child is unable, without a specific
accommodation, to use a technology device used by all students, the
agency must ensure that the necessary accommodation is provided.
Further, commenters are correct that LEAs must ensure that students,
their teachers, and other personnel receive the necessary in-service
instruction on the operation and maintenance of technology.
Finally, Sec. 300.308 of these final regulations should be amended
to clarify that, on a case-by-case basis, the use of school-purchased
assistive technology devices in a child's home or in other settings is
required if the child's IEP team determines that the child needs to
have access to those devices in order to receive FAPE. The assistive
technology devices that are necessary to ensure FAPE must be provided
at no cost to the parents, and the parents cannot be charged for normal
use, and wear and tear. However, while ownership of the device in these
circumstances would remain with the public agency, State law, rather
than Part B, generally would govern whether parents are liable for
loss, theft, or damage due to negligence or misuse of publicly owned
equipment used at home or in other settings in accordance with a
child's IEP.
Changes: No change has been made to this section in response to
these comments. However, Sec. 300.308 has been amended, consistent with
the above discussion.
Child With a Disability (Sec. 300.7)
Comment: A number of commenters requested that the definition of
developmental delay be consistent across both Part B and the early
intervention program under Part C. The commenters stated that defining
the term consistently across all age ranges will help to avoid
confusion, enhance transition, and conform to diagnostic procedures.
Other commenters requested that States not be allowed to establish
their own definitions of developmental delay because of the risk of
inequitable services across State lines.
Several commenters requested that children with sensory
disabilities (such as deafness or blindness) not be included under the
developmental delay designation, because a sensory disability is a
permanent condition and not a delay. Some commenters requested that
LEAs be required to justify, through assessment and elimination of
specific disabilities, why a child is identified as developmentally
delayed. One of the commenters stated that LEAs must be required to
include assessment of uneven patterns of development as part of the
determination of developmental delay, and added that developmental
delay should be utilized for individual cases where the child's
disability cannot be identified, although delays are manifested in the
child.
[[Page 12541]]
A few commenters recommended that the regulations make clear that
(1) the broad definition of developmental delay must not be used to
deny proper evaluations, and (2) a full, comprehensive evaluation of
each child must be conducted in all areas of suspected disability so
that the child's particular educational and other disability-related
needs can be effectively addressed.
Some commenters disagreed with the language in Note 2 prohibiting
States that have adopted developmental delay from requiring LEAs to
also adopt the provision, since LEAs, as agents of the State, may be
directed by the State to enforce what the State has adopted. Other
commenters recommended that the regulations make clear that an LEA is
not required to indicate why a child is in a developmental delay
category rather than in a disability category, and that an LEA is not
required to categorize the child as having one of the thirteen
disabilities before using the developmental delay designation.
Discussion: The term ``developmental delay'' is a statutory term
that is included in both Parts B and C of the Act. A definition of
developmental delay, substantially similar to the definition in
Sec. 300.7(a)(2) of the NPRM, should be retained in these final
regulations. Because of the numerous questions raised by commenters
about the application of this definition, it is determined that a new
paragraph describing requirements governing the use of the
developmental delay designation should be added to these final
regulations as Sec. 300.313. In light of these changes, the definition
of ``developmental delay'' would be placed in paragraph (b) of
Sec. 300.7 of these final regulations, and paragraph (b) of this
section of the NPRM would be redesignated as a new paragraph (c).
Also, in light of the general decision not to use notes in these
final regulations, Notes 2 and 3 following this section of the NPRM
should be removed, and the substance of these notes would be
incorporated into the new Sec. 300.313. This new section will (1) set
out the requirements for States and LEAs in using the developmental
delay designation; (2) clarify that States and LEAs may use the
developmental delay designation for any child who has an identifiable
disability, provided all of the child's identified needs are addressed;
and (3) clarify that a State may, but is not required to, adopt a
common definition of developmental delay for Parts B and C.
States electing to adopt the term developmental delay are not
prohibited from also continuing to use the disability categories in
Sec. 300.7(a) and (c) for those children who have been evaluated in
accordance with Secs. 300.530-300.536 as having one of the listed
disabilities and who because of that disability need special education
and related services. Although States traditionally have had the
authority to require LEAs to adopt State policies, new section
602(3)(B) of the Act, unlike the provision in prior law, provides that
implementation of the provision related to serving children under the
developmental delay designation is at the discretion of both the State
and the LEA. New Sec. 300.313 reflects this statutory change.
Under the statute, States also have the discretion to apply the
term developmental delay to children who have an identified sensory
disability (such as deafness or blindness) or any other permanent
condition (such as a significant cognitive disability), or to use the
specific categories. However, States must ensure that children with
sensory impairments or other permanent conditions are evaluated in all
areas of suspected disability, and that the educational and other
disability-related needs of these children identified through
applicable evaluation procedures are appropriately addressed.
It is important to ensure that the broad definition of
developmental delay is not used to deny children proper evaluations. In
all cases, evaluations must be sufficiently comprehensive to ensure
that children's needs are appropriately identified. The provisions in
Secs. 300.530-300.536 of these regulations should ensure that
evaluations of children in States and LEAs that use the developmental
delay designation are sufficiently comprehensive to address the full
range of these children's needs. It would not be appropriate to require
public agencies to justify why a child is identified as developmental
delay rather than under one of the other disability designations in
these regulations.
Changes: Section 300.7 has been amended by adding a new paragraph
(a)(2) to clarify that if a child has one of the disabilities listed in
paragraph (a) of this section but only needs a related service and not
special education that child is not a child with a disability under
this part, unless the related service is considered special education
rather than a related service under State standards. Paragraph (a)(2)
of the NPRM has been redesignated as paragraph (b) of these final
regulations, entitled ``children aged three through nine experiencing
developmental delays,'' which incorporates the definition in
Sec. 300.7(a)(2)(i) and (ii) of the NPRM; and a new Sec. 300.313 has
been added that clarifies the circumstances under which the DD
designation is used, reflecting the substance of proposed
Sec. 300.7(a)(2)(iii) and Notes 2 and 3 to this section of the NPRM.
Notes 2 and 3 to this section of the NPRM have been deleted. Paragraph
(b) of the NPRM has been redesignated as paragraph (c) in these final
regulations.
Comment: A variety of comments proposing various changes in
definitions was received regarding the terms ``deaf-blindness,''
``emotional disturbance,'' ``hearing impairment,'' ``multiple
disability,'' ``speech or language impairment,'' ``mental
retardation,'' ``orthopedic impairment,'' ``specific learning
disability,'' ``traumatic brain injury,'' and ``visual impairment
including blindness.'' Other commenters supported the existing
definitions but suggested some modifications. Some commenters stated
that the term deaf-blindness, as defined in the NPRM, mistakenly labels
these children's disability as causing educational problems as if the
child is a burden to the system. These commenters requested that the
definition be amended to replace ``problems'' with ``needs''. The
commenters made the same statement with respect to the term ``multiple
disability.''
Discussion: In light of the general decision not to use notes in
these final regulations, Note 1 to this section of the NPRM should be
removed. While the characteristics of ``autism'' are generally evident
before age three, a child who manifests characteristics of the category
``autism'' after age three still can be evaluated as having autism, if
the criteria in the definition are satisfied. Because of the importance
of this clarification, the definition of autism in Sec. 300.7(c)(1)
should be amended to incorporate the substance of Note 1 to this
section of the NPRM. While there is merit to many of the proposed
changes to definitions and terms, modifications to the substance of
existing definitions should be subject to further review and discussion
before changes are proposed. For example, as indicated in the preamble
to the NPRM (62 FR 55026-55048 (Oct 22, 1997)), the Department plans to
carefully review research findings, expert opinion, and practical
knowledge over the next several years to determine whether changes
should be proposed to the procedures for evaluating children suspected
of having specific learning disabilities. Any changes to the definition
of this term should also be considered in light of that review.
[[Page 12542]]
As indicated in the NPRM, no substantive changes are made to the
definition of the term ``emotional disturbance'' in Sec. 300.7(c)(4).
With respect to the use of the term ``emotional disturbance'' instead
of ``serious emotional disturbance,'' the Senate and House committee
reports on Pub. L. No. 105-17 include 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 Sec. 300.7(b)(9) as promulgated
September 29, 1992. (S. Rep. No. 105-17, p. 7; H.R. Rep. No. 105-95,
p. 86 (1997).)
In light of the general decision not to use notes in these final
regulations, Note 4 to this section of the NPRM should be removed. In
response to suggestions of commenters, the definitions of deaf-
blindness and multiple disability should be revised to eliminate the
negative connotation of the language in the current definitions, and
the word ``needs'' should replace the word ``problems.'' However, these
changes, in no way, are intended to alter which children are considered
eligible under these categories.
Changes: Note 1 to this section of the NPRM has been removed, and
the definition of ``autism'' in Sec. 300.7(c)(1) of these final
regulations has been amended to specify that if a child manifests
characteristics of ``autism'' after age three, the child could be
diagnosed as having ``autism'' if the criteria in the definition of
``autism'' are satisfied. The definitions of deaf-blindness and
multiple disability have been revised to replace ``problems'' with
``needs.''
Note 4 to this section of the NPRM has been removed, and the
substance of Note 4 is reflected in the above discussion.
Comment: A large number of commenters expressed support for
retaining Note 5, and agreed with the clarification that attention
deficit disorder (ADD) and attention deficit hyperactivity disorder
(ADHD) are conditions that may make a child eligible under Sec. 300.7.
As an alternative, these and other commenters suggested that ADD/ADHD
be listed as examples of conditions that could make a child eligible
under the ``other health impairment'' category at Sec. 300.7(c)(9). A
few commenters requested that ADD/ADHD be specified as a separate
disability category under these regulations. Many of these commenters,
parents of children with ADD/ADHD, described the tremendous problems
they have had, and are having, in obtaining appropriate services for
their children. Of particular concern to these commenters was that ADD/
ADHD is not expressly listed in the regulations; additionally,
commenters were concerned that discussing ADD/ADHD in a note would not
be adequate. One commenter noted that the regulations should clarify
that a disabled child needs only one, not two, disabilities in order to
be eligible under these regulations. A few commenters recommended that
schools not require an additional evaluation for a child with ADD/ADHD
under other health impairment once the child has been diagnosed and has
qualified under another disability category, noting that schools have
placed burdens on children and their families by requesting that ADD/
ADHD be re-diagnosed by using different procedural qualification
requirements when the child with ADD/ADHD moves from one qualifying
category (such as learning disabilities or emotional disturbance) to
the other health impairment category.
Other commenters requested that Note 5 be deleted because it
exceeds statutory authority and would increase the regulatory burden on
LEAs by giving the false impression that children with ADD/ADHD are
automatically protected by the IDEA Amendments of 1997. Some of these
commenters stated that children with ADD/ADHD may be eligible for
services under the Act, and, if they are eligible, are receiving
services, but added that it is not appropriate to enumerate in the Act
or regulations all conditions, e.g., Tourette's Syndrome, that may
qualify children for special education and related services. Other
commenters indicated that the definition of ADD/ADHD is so vague it
fits all children, and added that the most damaging potential abuse
comes from over-identification of poor and minority children who will
get the label and the reduced expectations that accompany it. Some
commenters stated that the discussion in Note 5 of ``limited
alertness'' as ``heightened alertness'' is exceptionally loose and
could result in the largest expansion of eligible children in IDEA
history.
Several commenters stated that the diagnosis of ADHD/ADHD does not
require a medical evaluation if the disability is diagnosed by a school
or licensed psychologist, and the need for special education is
determined through the eligibility process in Secs. 300.534-300.535. A
suggestion was made by commenters that the regulations emphasize that
educational impact must be the basis for determining eligibility of
those children for special education because, according to commenters,
at least 25 percent of the children referred for evaluation, who had
been diagnosed medically as ADD/ADHD, were experiencing few, if any,
educational problems at the time of their referrals.
Discussion: Note 5 following Sec. 300.7 was included in the NPRM to
reflect the Department's longstanding policy memorandum relating to the
eligibility of children with ADD/ADHD. However, although some of the
commenters who favor deleting Note 5 indicate that some children with
ADD/ADHD are receiving services under these regulations, experience and
the numerous comments received have demonstrated that the Department's
policy is not being fully and effectively implemented.
It is important to take steps to ensure that children with ADD/ADHD
who meet the criteria under Part B receive special education and
related services in the same timely manner as other children with
disabilities. Therefore, the definition of ``other health impairment''
at Sec. 300.7(c)(9) of these final regulations should be amended to add
ADD/ADHD to the list of conditions that could render a child eligible
under this definition, and the list of conditions in Sec. 300.7(c)(9)
should be rearranged in alphabetical order. Following the phrase
``limited strength, vitality or alertness,'' and prior to the phrase,
``that adversely affects educational performance,'' the words
``including a child's heightened alertness to environmental stimuli
that results in limited alertness with respect to the educational
environment'' should be added.
These changes are needed to clarify the applicability of the
``other health impairment'' definition to children with ADD/ADHD. The
clarification with respect to ``limited strength, vitality, or
alertness'' is essential because many children with ADD/ADHD actually
experience heightened alertness to environmental stimuli, which results
in limited alertness with respect to their educational environment. In
light of these regulatory changes, Note 5 to this section of the NPRM
should be removed as a note, and other portions of Note 5 are reflected
in the following discussion. A child with ADD/ADHD may be eligible
under Part B 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. Children with ADD/
[[Page 12543]]
ADHD are a very diverse group; some children with ADD/ADHD who are
eligible under Part B meet the criteria for ``other health
impairments.'' Those children would be classified as eligible for
services under the ``other health impairments'' category if (1) the
ADD/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/ADHD. All children with ADD/ADHD clearly are not eligible to
receive special education and related services under these regulations,
just as all children who have one of the other conditions listed under
the other health impairment category are not necessarily eligible
(e.g., children with a heart condition, asthma, diabetes, and rheumatic
fever).
Some children with ADD/ADHD may be eligible under other categories,
such as ``emotional disturbance'' (Sec. 300.7(c)(4)) or ``specific
learning disability'' (Sec. 300.7(c)(10)) if they meet the criteria
under those categories. Regardless of what disability designation is
attached, children with ADD/ADHD meeting the criteria for any of the
listed disabilities under these regulations must receive the
specialized instruction and related services designed to address their
individualized needs arising from the ADD/ADHD. No child is eligible
for services under the Act merely because the child is identified as
being in a particular disability category. Children identified as ADD/
ADHD are no different, and are eligible for services only if they meet
the criteria of one of the disability categories in Part B, and because
of their impairment, need special education and related services.
Other children with ADD/ADHD may have a diagnosed medical condition
(and need medication) but may not require any special education or
otherwise be eligible under these regulations. These children may be
covered by the requirements of section 504 of the Rehabilitation Act of
1973 (Section 504) and its implementing regulation in 34 CFR Part 104.
With respect to commenters' suggestions that the diagnosis of ADD/
ADHD does not require a medical evaluation if the disability is
diagnosed by a school or licensed psychologist, a change is not needed
in these regulations. Also, it would not be appropriate to make a
change to respond to commenters' suggestion that a medical evaluation
is required for a child with ADD/ADHD to establish eligibility under
the other health impairment category. Part B does not require that a
particular type of evaluation be conducted to establish any child's
eligibility under these regulations; rather, the evaluation
requirements in Secs. 300.530-300.536 are sufficiently comprehensive to
support individualized evaluations on a case-by-case basis, including
the use of professional staff appropriately qualified to conduct the
evaluations deemed necessary for each child.
In accordance with these procedures, if a determination is made
that a medical evaluation is required in order to determine whether a
child with ADD/ADHD is eligible for services under Part B, such an
evaluation must be conducted at no cost to the parents. In all
instances, as is true for all children who may be eligible for services
under Part B, each child with ADD/ADHD who is suspected of having a
disability must be 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. (Sec. 300.532(g)).
There is no requirement under these regulations that a medical
evaluation be conducted to accomplish these assessments. Even if a
State requires that a medical evaluation be included as part of all
evaluations to determine eligibility for the other health impairment
category, it must also ensure that any necessary evaluations by other
professionals, such as psychologists, are conducted and considered as
part of the eligibility determination process. Whether or not public
agencies will be required to conduct an additional evaluation for a
child with ADD/ADHD under other health impairment once the child has
been evaluated and has qualified under another disability category will
depend on whether sufficient evaluation information exists to enable
school district officials to ensure, consistent with Sec. 300.532(g),
that each child is assessed in all areas of suspected disability.
Because these determinations will necessarily depend on the
individual needs of the child and the circumstances surrounding the
evaluation, a change is not needed.
With respect to the concern of commenters that the most damaging
potential abuse from the definition will be the over-identification of
poor and minority children, there is no indication that children from
minority backgrounds have been disproportionately identified as ADD/
ADHD even as the numbers of children in this category have increased.
Further, the definition of ADD/ADHD is not so loose that it could
result in the largest expansion of eligible children in IDEA history.
As previously stated, many children with ADD/ADHD are not eligible
under Part B. If appropriate evaluations are conducted in accordance
with Secs. 300.530-300.536, the result of the evaluations should be the
inclusion of only those children with ADD/ADHD who are eligible for,
and have an entitlement to, special education and related services
under Part B.
Changes: The definition of ``other health impairment'' at
Sec. 300.7(c)(9) has been amended to add ADD/ADHD to the list of
conditions that could render a child eligible under this definition,
and the list of conditions in Sec. 300.7(c)(9) has been rearranged in
alphabetical order. Following the phrase ``limited strength, vitality,
or alertness,'' and prior to the phrase, ``that adversely affects
educational performance,'' the words ``including a child's heightened
alertness to environmental stimuli that results in limited alertness
with respect to the educational environment'' have been added to
clarify the applicability of the other health impairment definition to
children with ADD/ADHD. Note 5 to this section of the NPRM has been
removed.
Day; Business Day; School Day (Sec. 300.9)
Comment: Some commenters indicated support for the definition of
``day'' as written. Many commenters requested that the term be revised
to define ``school day'' and ``business day,'' since these are key
terms that are used throughout the Act and regulations. Some of the
commenters recommended similar definitions of the terms, ``school day''
and ``business day'' (e.g., ``school day'' means days when children are
attending school and ``business day'' means days when a school is open
for business and administrative personnel are working). One definition
proposed by commenters included staff development day as a school day.
Several commenters asked when a partial day might be considered a
``day,'' if inservice or staff development days are considered business
days, and what holidays are to be used, as school districts and States
vary in this regard. Other commenters requested that there be no
reference to ``calendar day'' or ``day,'' but that instead the
definitions of ``school day'' and ``business day'' be incorporated into
these regulations. Some of the commenters indicated that the use of
``calendar day'' can place an impractical time standard on school
systems when
[[Page 12544]]
actions are required and a school may not be open for business.
Discussion: It is necessary, to avoid confusion and ensure clarity,
to amend the definition of ``day'' to include definitions of both
``school day'' and ``business day.'' Both ``school day'' and ``business
day'' are used to implement new provisions added by Pub. L. 105-17: The
term ``school day'' is used only with respect to discipline procedures
and appears in Secs. 300.121(c)(1) and (c)(2), and 300.520(a)(1) and
(c). The term ``business day'' is used in Secs. 300.509(b) (Additional
disclosure of information requirement); 300.520(b) (Authority of school
personnel); and 300.528(a)(1) (Expedited due process hearing). In
addition, the phrase ``business days (including holidays that fall on a
business day)'' is used in Sec. 300.403(d)(1)(ii) (Placement of
children by parents in a private school or facility if FAPE is at
issue.)
``School day'' means any day that children are in attendance at
school for instructional purposes. If children attend school for only
part of a school day and are released early (e.g., on the last day
before Christmas or summer vacation) that day would be considered to be
a school day. However, it is expected that the term ``school day,''
including partial school day, has the same meaning for all children in
school, including children with and without disabilities.
The term ``business day'' is used in the statute and regulations in
relation to actions by school personnel and parents. While school
personnel could reasonably be expected to know when administrative
staff are working, very often this information is not readily available
to parents, nor is it likely to be consistent from one LEA to another,
or from the SEA to an LEA. If ``business day'' were interpreted to be
days when school offices are open and administrative staff are working,
it could actually be impossible for parents to know with any certainty
the date in advance of a due process hearing on which they would have
to share evidence to be introduced at the hearing with the other party
to the hearing (see Sec. 300.509). Therefore, this term is interpreted
to be a commonly understood measure of time, Monday through Friday
except for Federal and State holidays, unless holidays are specifically
included, as in Sec. 300.403(d)(1)(ii).
Including definitions of ``school day'' and ``business day'' will
reduce confusion about the meaning of these terms and should facilitate
meeting the various timelines in the Act and regulations.
The definition of ``day,'' while that term was not previously
defined in the regulations, represents the Department's longstanding
interpretation that the term ``day'' means calendar day. (See, e.g.,
NPRM published August 4, 1982, 47 FR 33836-33840 describing the 30-day
time line from determination of eligibility to initial IEP meeting as
``30 calendar days.'') This interpretation is consistent with
generally-recognized authority on statutory interpretation. (See
Sutherland Stat. Const. Sec. 33.12 (5th Ed.)). In addition, the statute
itself uses three different terms, ``day,'' ``business day,'' and
``school day,'' so it would be inappropriate to interpret ``day'' to be
the same as either ``business day'' or ``school day.''
Finally, altering the interpretation of ``day'' from the
longstanding interpretation as ``calendar day'' would raise significant
concerns about compliance with the terms of section 607(b) of the Act,
especially as to timelines that affect the rights of parents and
children with disabilities such as (1) the timeline in Sec. 300.343
(relating to holding an initial IEP meeting for a child), and (2) the
procedural safeguards in Subpart E, including Sec. 300.509(a)(3)
(hearing rights--timeline for disclosure of evidence); Sec. 300.511(a)
and (b) (timelines for hearings and reviews); and Sec. 300.562(a)
(access rights relating to records).
There also are other provisions in these regulations that include
timelines that have always been interpreted to be calendar day
timelines--including the (1) 30-day public comment period in
Sec. 300.282, (2) by-pass procedures under Subpart D, (3) notice and
hearing procedures in Secs. 300.581-300.586 that the Department uses
before determining that a State is not eligible under Part B, and (4)
60-day timeline under the State complaint procedures in Sec. 300.661.
The majority of those timelines have been in effect since 1977, and, in
light of the clear distinction in the IDEA Amendments of 1997 between
days, school days, and business days, there is no basis for changing
other timelines in the regulations.
Changes: The name of the section in the NPRM has been changed to
``Day; business day; school day'' in these final regulations.
Definitions of ``school day'' and ``business day'' have been added to
reflect the above discussion.
Educational Service Agency (Sec. 300.10)
Comment: None.
Discussion: The definition of ``educational service agency'' in
Sec. 300.10 of these final regulations adopts the statutory definition
of this term in section 602(4) of the Act. This definition replaces the
definition of the term ``intermediate educational unit'' (IEU) in
Sec. 300.8 of the current regulations. The use of the term
``educational service agency'' was not intended to exclude those
entities that were considered IEUs under prior law. This interpretation
is supported by the legislative history, which makes explicit that most
definitions in prior law have been retained, and, where appropriate,
updated. S. Rep. No. 105-17 at 6., and H.R. Rep. No. 105-95 at 86. With
respect to ``educational service agency,'' the Reports explain that
this definition has been updated ``to reflect the more contemporary
understanding of the broad and varied functions of such agencies.'' Id.
Although there were no comments regarding this definition, the
application of the term ``educational service agency'' to entities
covered under the definition of IEU in prior law has been questioned.
The definition of IEU did not refer explicitly to public elementary and
secondary schools. However, the definition of ``educational service
agency'' makes specific references to an entity's administrative
control over public elementary and secondary school. This definition
could be misinterpreted as excluding from the educational service
agency definition those entities in States that serve preschool-aged
children with disabilities but do not have administrative control and
direction over a public elementary or secondary school. Therefore, to
avoid any confusion about the use of this new terminology, a statement
should be added to the definition to clarify that the term
``educational service agency'' includes entities that meet the
definition of IEU in section 602(23) of IDEA as in effect prior to June
4, 1997.
Changes: Consistent with the above discussion, a statement has been
added at the end of the definition to clarify that the definition of
``educational service agency'' includes entities that meet the
definition of IEU in section 602(23) of IDEA as in effect prior to June
4, 1997.
Equipment (Sec. 300.11)
Comment: One comment stated that the reference to ``books,
periodicals, documents, and other related materials'' be deleted from
Sec. 300.10(b) because materials and equipment are accounted for
differently in the budget. A few commenters recommended that the
definition of ``equipment'' be amended to add that (1) any
instructional or related materials be provided in accessible formats,
as appropriate; and
[[Page 12545]]
(2) any technological aids and services be accessible.
Discussion: The definition of ``equipment'' is a standard statutory
definition that is used in most elementary and secondary education
programs funded by the Department. Therefore, efficient administration
of Federal programs would not be served by revising the definition in
the ways suggested by the commenters. In appropriate situations, public
agencies are required by section 504 of the Rehabilitation Act of 1973
and title II of the Americans with Disabilities Act (ADA) to ensure
that instructional or related materials are provided in accessible
formats and that technological aids and services are accessible to
students with disabilities or can be made accessible, to afford
students with disabilities an equal opportunity to participate in their
programs.
Changes: None.
General Curriculum
Comment: Several commenters indicated support for the definition of
``general curriculum,'' and for the note clarifying that the term
relates to the content of the curriculum and not the setting in which
it is used. Some commenters stated that, as written, the definition
should preclude any likelihood of the ``general curriculum'' being
identified with the ``low'' track.
Some commenters recommended that the substance of the note be
integrated into the definition or made other suggestions to strengthen
the idea that the general curriculum applies to children with
disabilities wherever they are educated. Other commenters disputed that
there is a ``general curriculum,'' pointing to the variety of common
courses offered by many school districts, the need of some children for
a functional life-skills curriculum or the needs of students in
alternative programs (e.g., moderate disabilities, significant or
profound, autism, etc.) who may be pursuing an alternative certificate
rather than a diploma. Other commenters requested that the definition
be dropped from the final regulations, because it (1) sets a dangerous
precedent for the Federal government to dictate what the general
curriculum should be in each school, and (2) violates the General
Education Provisions Act.
Discussion: The concept of ``general curriculum'' in these
regulations plays a crucial role in meeting the requirements of the
Act. The IDEA Amendments of 1997 place significant emphasis on the
participation of children with disabilities in the general curriculum
as a key factor in ensuring better results for these children.
The definition in Sec. 300.12 would not have imposed a national
curriculum, but only clarified what the statutory term ``general
curriculum'' means. As the term is used throughout the Act and
congressional report language, the clear implication is that, in each
State or school district, there is a ``general curriculum'' that is
applicable to all children. A major focus of the Act--especially with
respect to the new IEP provisions--is ensuring that children with
disabilities are able to be involved in and progress in the ``general
curriculum.'' For example, the Senate and House committee reports on
Pub. L. No. 105-17 state that--
[t]he new focus is intended to produce attention to the
accommodations and adjustments necessary for disabled children to
have access to the general education curriculum and the special
services which may be necessary for appropriate participation in
particular areas of the curriculum due to the nature of the
disability. (S. Rep. No. 105-17, p. 20; H.R. Rep. No. 105-95, p. 100
(1997)).
Even as school systems offer more choices to students, there still
is a common core of subjects and curriculum areas that is adopted by
each LEA or schools within the LEA, or, where applicable, the SEA, that
applies to all children within each general age grouping from preschool
through secondary school. Appropriate access to the general curriculum
must be provided. The development and implementation of IEPs for each
child with a disability must be based on having high, not low,
expectations for the child.
In light of the concerns of the commenters and the principle of
regulating only to the extent necessary, proposed Sec. 300.12 should be
removed from the final regulations. Instead the regulations should
emphasize the importance of the ``general curriculum'' concept in the
IEP provision under which the term is used.
Changes: The definition of ``general curriculum'' in Sec. 300.12 of
the NPRM and the note following that section of the NPRM have been
deleted. The term is explained where it is used in Sec. 300.347 and in
Appendix A regarding IEP requirements.
Individualized Education Program Team (Sec. 300.16)
Comment: None.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following this section of the NPRM
should be removed. However, it is important to clarify that the IEP
team may also serve as the placement team.
Changes: The note following this section of the NPRM has been
removed.
Local Educational Agency (Sec. 300.18)
Comment: A number of commenters expressed concern about the note on
public charter schools following Sec. 300.17 of the NPRM, stating that
it provides an inadequate and too limited explanation of the
responsibilities of those schools under these regulations (i.e., it
focuses only on public charter schools that are ``LEAs'' under State
law and excludes public charter schools that are defined by State law
as being part of an LEA).
Some of the commenters requested that the note be modified to
clarify that public charter schools must comply with these regulations
whether or not they receive Part B funds. Commenters believe that this
clarification is particularly important because, according to the
commenters, services to disabled children in some public charter
schools have been dismantled, and parents have been asked to waive
their children's rights under Part B as a condition of enrollment in
the schools.
Other commenters requested that the note be dropped and that
Sec. 300.241 (Treatment of public charter schools and their students)
clarify that all charter schools must comply with the requirements of
Part B of the Act. The commenters added that this action would
consolidate all public charter school requirements into one regulatory
provision. A few commenters requested that the regulations include a
provision requiring that LEAs in which charter schools are physically
located describe to the State how they will ensure that children with
disabilities receive special education and related services under this
part, even when the charter school is not otherwise under the
jurisdiction of the LEA.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following Sec. 300.17 of the NPRM
should be removed. However, it should be pointed out that the proposed
note was inadequate and did not provide a full explanation of the
responsibilities of public charter schools under these regulations.
In light of concerns raised about how public charter schools could
meet their obligations to disabled students under Part B and obtain
access to Part B funds for disabled students enrolled in their schools,
two important provisions were included in the IDEA Amendments of 1997
at section 613(a)(5) and (e)(1)(B).
Some public charter schools can be LEAs if, under State law, they
meet the
[[Page 12546]]
Part B definition of LEA. As a result of section 613(e)(1)(B) of the
Act, public charter schools that are LEAs may not be required to apply
for Part B funds jointly with other LEAs, unless explicitly permitted
to do so under the State charter school statute. However, in many
instances, charter schools are schools within LEAs. If this is so,
section 613(a)(5) of the Act provides that the LEA of which the public
charter school is a part must serve those disabled students attending
public charter schools in the same manner as it serves students with
disabilities in its other public schools and must provide Part B funds
to charter schools in the same manner that it provides Part B funds to
other public schools.
Still, in other instances, due to the provisions in States' charter
school statutes, some public charter schools are not considered LEAs or
a school within an LEA. In such instances, the SEA would have ultimate
responsibility for ensuring that Part B requirements are met.
Regardless of whether a public charter school receives Part B funds,
the requirements of Part B are fully applicable to disabled students
attending those schools. The legislative history of the IDEA Amendments
of 1997 makes explicit that Congress ``expects that public charter
schools will be in full compliance with Part B.'' See S. Rep. No. 105-
17 at 17; H.R. Rep. No. 105-95 at 97.
Therefore, based on the concerns expressed by commenters and for
the reasons clarified in the above discussion, it is determined that
(1) the definition of LEA should be amended to clarify that the term
``LEA'' includes a public charter school established as an LEA under
State law; (2) the provision in Sec. 300.241 (Treatment of charter
schools and their students) should be retained in these final
regulations; and (3) a new Sec. 300.312, entitled ``Children with
disabilities in public charter schools,'' should be added to these
final regulations.
The new section makes clear that children with disabilities and
their parents retain all rights under these regulations and that
compliance with Part B is required regardless of whether a public
charter school receives Part B funds. Thus, charter school personnel,
for example, may not ask parents to waive their disabled child's right
to FAPE in order to enroll their child in the charter school. This new
section also would address the responsibilities of (1) public charter
schools that are LEAs, (2) LEAs if a charter school is a school in the
LEA, and (3) the SEA if a charter school is not an LEA or a school in
an LEA.
Changes: The note has been removed. The definition of LEA has been
amended by adding after ``secondary school'' the words ``including a
public charter school that is established as an LEA under State law.''
A new Sec. 300.312 has been added to further address the treatment of
charter schools.
Native Language (Sec. 300.19)
Comment: Some commenters requested that, in item (1) under the
note, the Department change ``child'' to ``student''; add ``combination
of languages'' used by the student; and add ``in the home and learning
environments.'' A few commenters requested additional specificity in
item 2 to clarify that the mode of communication used should be that
used by the individual.
Discussion: In light of the general decision not to use notes in
these final regulations, the note following Sec. 300.18 of the NPRM
should be removed. However, it is critical that public agencies take
the necessary steps to ensure that the needs of disabled children with
limited English proficiency (LEP) are adequately addressed. The term
``native language'' is used in the prior notice, procedural safeguards
notice, and evaluation sections: Secs. 300.503(c), 300.504(c), and
300.532(a)(1)(ii).
In light of concerns of commenters and the need to ensure that the
full range of the needs of children with disabilities whose native
language is other than English is appropriately addressed, the
definition of ``native language'' in the NPRM should be expanded in
these final regulations to clarify that (1) in all direct contact with
the 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; and (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).
These changes to the regulatory definition of ``native language''
should enhance the chances of school personnel being able to
communicate effectively with a LEP child in all direct contact with the
child, including evaluation of the child.
Changes: The definition of ``native language'' in the NPRM has been
amended to reflect the concepts contained in the note following that
definition, and the note has been removed.
Parent (Sec. 300.20)
Comment: Several commenters indicated that (1) based on the
definition of ``parent'' in the NPRM, States would be required to
change their laws to include foster parents under the State definition
of ``parent,'' and (2) language should be added to the NPRM so that
foster parents can serve as parents, unless prohibited from doing so
under State law.
These and other commenters also requested that
(1) the language in the note be included in the text of the
regulations;
(2) a provision be added to the effect that the public agency must
continue to afford the natural parents all protections of this part if
their rights to make educational decisions have not been extinguished,
even if the child does not live with the natural parents and even if
other persons appear to be acting as the child's parents;
(3) the legal parent have the authority, not a grandparent or other
person, unless parental authority is extinguished;
(4) ``legal'' be added in front of ``guardian''; and
(5) all references to ``parent'' in these regulations be changed to
``the child's parent.'' Some commenters felt that the note created a
problem for school districts because a situation often arises where a
child is living with a person acting as a parent, while the natural
parents are still involved and have not had their rights terminated,
and requested clarification for school districts in these situations.
Discussion: States should not have to amend their laws relating to
parents in order to treat ``foster parents'' as parents. Therefore,
conditional language in this regard is necessary if State law prohibits
a foster parent from acting as a parent. This change would accomplish
the intended effect of the provision (i.e., acknowledging that in some
instances foster parents may be recognized as ``parents'' under the
Act) without adding any burden to individual States whose State
statutory provisions relating to parents expressly exclude foster
parents.
In light of the general decision not to use notes in these final
regulations, the note following this section of the NPRM should be
removed, but the substance of the note on foster parents should be
added to the text of the regulations. Under these regulations, the term
``parent'' is defined to include persons acting in the place of a
parent, such as a grandparent or stepparent with whom the child lives,
as well as persons who are legally responsible for a child's
[[Page 12547]]
welfare, and, at the discretion of the State, a foster parent who meets
the requirements in paragraph (b) of this section. Commenters' concerns
related to ensuring that the rights of natural parents are protected in
a case in which a disabled child is living with a person acting as a
parent, or providing that the parent retain authority even if a child
is living with a grandparent, raise questions that the Department has
traditionally held best to be left to each State to decide as a matter
of family law.
It is not necessary to add ``legal'' before the word ``guardian''
since the statute regarding the term ``parent'' at section 602(19)(A)
merely notes that it includes a legal guardian. A legal guardian would
be considered to meet the regulatory definition of ``parent''. The
regulatory definition of ``parent'' has always included more than just
the term identified in the statute. An inclusive definition of parent
benefits public agencies by reducing the instances in which the agency
will have to bear the expense of providing and appointing a surrogate
parent (see Sec. 300.515) and benefits children with disabilities by
enhancing the possibility that a person with ongoing day-to-day
involvement in the life of the child and personal concerns for the
child's interests and well-being will be able to act to advance the
child's interests under the Act.
Regarding the use of the reference to the child's parent, no change
is needed since it is implicit that the rights under Part B are
afforded to a child with a disability and his or her parents, as
defined under these regulations.
Changes: The note following the definition of ``parent'' in the
NPRM has been removed; and the substance of the note has been reflected
in the above discussion. The definition of ``Parent'' in these final
regulations has been amended to permit States in certain circumstances
to use foster parents as parents under the Act without amending
relevant State statutes.
Public Agency (Sec. 300.22)
Comment: Some commenters requested that the definition of ``public
agency'' be amended to include ``charter schools'' that are created
under State law and are the recipients of public funds, because as
proposed, a public agency would not include any charter school that is
not an LEA or most of the nation's existing charter schools. Other
commenters stated that, in order to support the provision on assistive
technology under Sec. 300.308, the definition of ``public agency'' must
be amended to include other State agencies, since the proposed
definition of ``public agency'' includes only the SEA, not other State
agencies which arguably could be used to try to circumvent financial
responsibility based on this omission.
Discussion: Public charter schools that are not otherwise included
as LEAs or ESAs and are not a school of an LEA or ESA should be added
to the definition of ``public agencies'' in order to ensure that all
public entities responsible for providing education to children with
disabilities are covered. However, the definition of ``public agency''
should not be amended to address financial responsibility for assistive
technology. If another State agency is responsible for providing
education to children with disabilities, it is already included in the
definition of ``public agency.'' Other State agencies, not responsible
for educating children with disabilities, should not be held to the
requirements imposed on public agencies by these regulations because
they are not agencies with educational responsibilities.
Changes: Public charter schools as discussed previously has been
added to the list of examples of a ``public agency'' in Sec. 300.22.
Qualified Personnel (Sec. 300.23)
Comment: Numerous commenters stated that the definition of
``qualified'' should be renamed ``qualified personnel,'' updated to the
highest standard, and should be cross-referenced to the exception to
the maintenance of effort provision'' in the regulations. Some
commenters requested that the definition be changed to link the term
``qualified'' to the statutory and regulatory provisions on personnel
standards, i.e., the SEA standards that are consistent with any State
approved or recognized certification, licensing, registration, or other
comparable requirements 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. These commenters also
stated that the more detailed definition is important to ensure that,
under the exception to maintenance of effort in Sec. 300.232, qualified
lower-salaried staff who replace higher-salaried staff have met the
highest requirements in the State consistent with Sec. 300.136.
Other commenters, with similar recommendations, requested that the
name of the section be changed to ``Qualified professionals and
qualified personnel,'' and that a note be added to explain the basis
and importance of qualified professionals. Several commenters requested
that the definition be amended to require that personnel providing
services to limited English proficient students meet SEA requirements
for bilingual specialists in the language of the child or student.
Some commenters requested that the regulations be clarified to
address qualifications for interpreters serving children who are deaf
or have hearing impairments.
Discussion: It is appropriate to change the title of this section
of these final regulations to ``qualified personnel.'' This change is
consistent with the importance of ensuring that all providers of
special education and related services, including interpreters, meet
State standards and Part B requirements.
In order for interpreters to provide appropriate instruction or
services to children with disabilities who require an interpreter in
order to receive FAPE, States must ensure that these individuals meet
appropriate State qualification standards.
It is not necessary to refer to Sec. 300.136, as the definition
already specifies that the person must meet State-approved or
recognized requirements. Section 300.232 (exception to maintenance of
effort), uses the term ``qualified'' in referring to the replacement of
higher-salaried personnel by qualified lower-salaried personnel.
Therefore it would be unnecessary and redundant to include a reference
to that section.
The definition of ``qualified personnel'' is sufficiently broad to
encompass the qualifications of bilingual specialists, and no further
changes are required in this definition.
Changes: The name of this section has been changed to ``Qualified
personnel,'' and a corresponding reference to ``qualified personnel''
has been included in the text of the definition.
Related Services (Sec. 300.24)
Comment: A number of comments were received relating to the general
definition of ``related services'' under Sec. 300.22(a) of the NPRM,
and to Note 1 following that section of the NPRM. These comments
included revising Sec. 300.22(a) consistent with the definition in the
statute, and adding services to the definition of related services; for
example, assistive technology devices and services, school nursing
services, travel training, and educational interpreter services. Some
of these commenters stated that interpreter services are of utmost
importance for deaf students to succeed in the educational setting and
are essential for hearing impaired students to function in the
mainstream. A few
[[Page 12548]]
commenters requested that ``qualified sign language interpreting'' be
added, including the definition of the term from the ADA.
One commenter stated that a note should be added that related
services not only can be used to ameliorate the disability but also to
work toward independence and employability.
Several commenters recommended that changes be made in Note 1. Some
of the commenters expressed concern about adding additional services
(travel training, nutrition services, and independent living services)
to an already lengthy list of services. Some commenters requested that
the note be deleted because it is too expansive, or that the
parenthetical phrase in the first paragraph be dropped because the
listing is confusing without some further explanation or clarification.
One comment stated that the menu of related services suggests that a
disabled child might need all of the listed services. Other commenters
stated that inclusion of terms such as dance therapy and nutrition is
confusing, and that further clarification is needed as to how they are
``related'' to the student's access to special education and to making
progress in the general curriculum.
Some commenters requested that ``artistic and cultural programs''
be deleted from the parenthetical statement in Note 1, stating (for
example) that (1) these programs are areas of the curriculum and not
related services (i.e., they are not necessary for a child to benefit
from special education), and (2) ensuring that disabled children have
an equal opportunity to participate in the type of cultural activities
available to all children is different than considering those programs
to be a related service ``therapy'' that implies specific certification
requirements in many sectors.
A number of commenters requested that the statement that
psychological testing might be done by qualified psychological
examiners, psychometrists, or psychologists depending on State
standards be deleted from the second paragraph of Note 1. One comment
stated that there is no national standard for this role, and thus it
conflicts with evaluation requirements and personnel standards. Other
commenters recommended that the third paragraph in Note 1 be amended to
provide that the activities do not act to reduce the amount of the
service specified by any child's IEP as necessary for FAPE.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 1 following this section of the NPRM
should be removed, but the substance of the note is reflected in the
following discussion. All related services may not be required for each
individual child. As under prior law, 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) if they are required to assist a child with a
disability to benefit from special education in order for the child to
receive FAPE. Therefore, if it is determined through the Act's
evaluation and IEP requirements that a child with a disability requires
a particular supportive service in order to receive FAPE, regardless of
whether that service is included in these regulations, that service can
be considered a related service under these regulations, and must be
provided at no cost to the parents.
The IEP process in Secs. 300.340-300.350, and the evaluation
requirements in Secs. 300.530-300.536, are designed to ensure that each
eligible child under Part B receives only those related services that
are necessary to assist the child to benefit from special education,
and there is nothing in these regulations that would require every
disabled child to receive all related services identified in the
regulations, as suggested by some commenters.
Commenters' suggestions that the second paragraph of Note 1 to this
section of the NPRM is no longer needed should be addressed. The
statement in Note 1--that ``psychological testing might be done by
qualified psychological examiners, psychometrists, or psychologists
depending on State standards''--should not be retained, since States
must establish their own qualification standards for persons providing
special education and related services. Therefore, State standards
would govern which individuals should administer these tests,
consistent with Part B evaluation requirements.
As stated in the discussion under Secs. 300.5 and 300.6 of this
analysis, assistive technology devices and services may already be
considered a related service. Therefore, it is not necessary to add
assistive technology devices and services to the list of related
services defined in this section. Second, because ``school health
services'' is currently defined as services provided by a ``qualified
school nurse'' or other qualified person, there is no reason to address
further the issue of ``school nurses'' or school nursing services.
Third, although interpreter services for children with hearing
impairments are not specifically mentioned in the definition of related
services, those services have been provided under these regulations
since the initial regulations for Part B were issued in 1977. (See also
discussion under Qualified personnel).
Regarding commenters' suggestions that related services are
required not only to ameliorate the disability but to provide
preparation for employment, a change is not needed. The Act's
transition services requirements are sufficiently broad to facilitate
effective movement from school to post-school activities, and if deemed
appropriate by the IEP team, these transition services could be
identified as related services for an individual student.
Changes: Note 1 following the definition of ``related services'' in
the NPRM has been removed.
Comment: A number of commenters requested changes in the
definitions of specific terms defined in the definition of ``related
services,'' as follows:
Some commenters recommended that the definition of ``audiology'' be
modified to include functions that are not contained in the current
definition. Some commenters requested that the definition of
``occupational therapy'' be amended to add language to ensure that
occupational therapy services are provided by qualified occupational
therapists or occupational therapy assistants to ensure that those
services can assist children to participate in the general curriculum,
and achieve IEP/IFSP goals.
A number of commenters recommended that the final regulations
clarify that orientation and mobility services may be required by
children with other disabilities, and that the services may be provided
by personnel with different qualifications other than those serving
persons who are blind or visually impaired. Other commenters requested
that (1) the term ``qualified personnel'' should be deleted because
using this term in this definition creates personnel problems for rural
areas and for many urban settings, that orientation and mobility
personnel are not used for all purposes listed, and not every State has
a classification called orientation and mobility specialist; and (2)
the option of providing orientation and mobility services in a
student's home would apply to students who may not be home-schooled and
would violate the least restrictive environment requirements of the
Act.
Several comments were also received on Note 2 (relating to
orientation and mobility services and travel training). Some commenters
requested that travel training be added as a separate related service
with its own definition. The definition would be based on, or
[[Page 12549]]
incorporate, the language from Note 2 relating to travel training.
Other commenters suggested that it would be more accurate to refer to
this type of training as mobility training.
A number of commenters requested that Note 2 be deleted because it
was too expansive. Other commenters stated that (1) all references to
travel training be dropped, since the term is not defined or even
mentioned in the statute; (2) Note 2 expands services beyond the
statute and will make orientation and mobility services extremely
expensive and adversarial by requiring new personnel that are not
available in rural areas and many urban areas; (3) Note 2 should not
require a deliverable standard against which a school system might be
held liable; and (4) travel training may be appropriate for other
children with disabilities, but orientation and mobility specialists
are not the personnel to provide these services.
With respect to parent counseling and training, commenters
recommended that (1) the title be changed to ``Parental training''
because the definition describes training, and schools cannot counsel
parents as a related service; and (2) a training element be added at
the end of the definition, to provide for assisting parents to acquire
the necessary skills to help support the implementation of their
child's IEP or IFSP. Other commenters proposed a specific definition of
parent counseling and training that would emphasize helping parents to
acquire the necessary skills to support the implementation of their
child's IEP or IFSP. Another commenter recommended adding a note that
training may include training in sign language or other forms of
communication.
Several commenters requested that the definition of ``school health
services'' at Sec. 300.22(b)(12) of the NPRM be expanded to
specifically include health care services that are not curative or
treatment oriented, such as suctioning, gastronomy, tube feeding, blood
sugar testing, catheterization, and administration of medication.
A few commenters requested that the definition of ``school health
services'' be amended to add the three-part test adopted by the United
States Supreme Court in Irving Independent School District v. Tatro,
484 U.S. 883 (1984). In Tatro, the Court stated that services affecting
both the educational and health needs of a child must be provided under
IDEA if: (1) The child is disabled so as to require special education;
(2) the service is necessary to assist a disabled child to benefit from
special education (thus, services which could be provided outside the
school day need not be provided by the school, regardless of how easily
a school could provide them); and (3) a nurse or other qualified person
who is not a physician can provide the service. The commenters believe
that by stating the Tatro holding in the regulation, longstanding
Department policy would be formalized and litigation would decrease.
Other commenters requested that the regulations clarify that
specialized school health services should not be improperly or
dangerously performed by individuals who lack the requisite training
and supervision.
Discussion: The definition of ``audiology'' should not be amended
since the changes suggested by commenters are more than technical
changes, and thus would require further study and regulatory review.
However, in response to suggestions of commenters, it is appropriate to
modify the definition of ``occupational therapy'' to make it clear that
this term encompasses services provided by a qualified occupational
therapist. This makes the definition generally consistent with the
other related service definitions. It is not necessary to incorporate
the term ``certified occupational therapy assistant,'' because the
option of using paraprofessionals and assistants to assist in the
provision of services under these regulations is addressed in
Sec. 300.136(f).
As stated by the commenters, some children with disabilities other
than visual impairments need travel training if they are to safely and
effectively move within and outside their school environment, but these
students (e.g., children with significant cognitive disabilities) do
not need orientation and mobility services as that term is defined in
these regulations. ``Orientation and mobility services'' is a term of
art that is expressly related to children with visual impairments, and
includes services that must be provided by qualified personnel who are
trained to work with those children. No further changes to the
definition of ``orientation and mobility services'' are needed, since
the definition as written does not conflict with the Act's least
restrictive environment requirements.
For some children with disabilities, such as children with
significant cognitive disabilities, ``travel training'' is often an
integral part of their special educational program in order for them to
receive FAPE and be prepared for post-school activities such as
employment and independent living. 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.
Therefore, the definition of ``special education'' should be amended to
include a provision relating to the teaching of travel training, as
appropriate, to children with significant cognitive disabilities, and
any other disabled children who require such services. The regulations
should not substitute the term ``mobility training,'' since the
legislative history (S. Rep. No. 105-17, p. 6; H.R. Rep. No. 105-95, p.
86) recognizes that ``orientation and mobility'' services are generally
recognized as for blind children while children with other disabilities
may need travel training. In light of this regulatory change, Note 2
following this section of the NPRM should be removed.
The definition of ``parent counseling and training'' should be
changed to recognize the more active role acknowledged for parents
under the IDEA Amendments of 1997 as participants in the education of
their children. Parents of children with disabilities are very
important participants in the education process for their children.
Helping them gain the skills that will enable them to help their
children meet the goals and objectives of their IEP or IFSP will be a
positive change for parents, will assist in furthering the education of
their children, and will aid the schools as it will create
opportunities to build reinforcing relationships between each child's
educational program and out-of-school learning.
For these reasons, the definition of ``parent counseling and
training'' should be changed to include helping parents to acquire the
necessary skills that will allow them to support the implementation of
their child's IEP or IFSP. This change is in no way intended to
diminish the services that were available to parents under the prior
definition in these regulations.
It is not necessary to modify the definition of ``school health
services'' in the NPRM to add more specificity because the current
definition requires provision of health services, including those
addressed by the comments, if they can be provided by a qualified nurse
or other qualified individual who is not a physician, and the IEP team
determines that any or all of the services are necessary for a child
with a disability to receive FAPE. The commenters' description of the
holding in the Tatro decision is consistent with the Department's
longstanding interpretation regarding school health services.
[[Page 12550]]
In any case, the list of examples of related services in
Sec. 300.22 is not exhaustive, and other types of services not
specifically mentioned may be required related services based on the
needs of an individual child. The only type of service specifically
excluded from ``related services'' are medical services that are not
for diagnostic and evaluation purposes. ``Medical services,'' has
always been defined by the regulations as services provided by a
physician. The regulations already make clear that providers of school
health services, as is the case for providers of special education and
related services in general, must be qualified consistent with
Secs. 300.23 and 300.136 of these regulations.
Changes: Consistent with the above discussion, the definitions of
``occupational therapy'' at Sec. 300.24(b)(5) of these final
regulations and ``parent counseling and training'' at Sec. 300.24(b)(7)
of these final regulations have been revised; Note 2 has been deleted;
and a reference to travel training has been added under Sec. 300.26
(Special education).
Comment: Numerous comments were received relating to
``psychological services.'' Many of these comments addressed the role
of school psychologists under this part (e.g., stating that a
psychologist should be a member of the evaluation team, be involved in
IEP meetings, and conduct behavioral assessments). A few commenters
recommended that ``other mental health services'' be added at the end
of proposed Sec. 300.22(b)(9)(v), stating that this would ensure that
schools use, and families have access to, a variety of strategies and
interventions that go beyond psychological counseling. The commenters
added that children and families have been denied these necessary
mental health services because these services are not specifically
stated.
Some commenters expressed concern about the provision in the NPRM
that designated school psychologists and school social workers as the
personnel responsible for assisting in the development of positive
behavioral interventions and strategies for IEP goal development. These
commenters stated that, although psychologists and school social
workers may participate in actions relating to student behavior, this
function is too critical to be listed under a specific category of
related services. A few of these commenters stated that specifically
linking development of positive behavioral interventions and strategies
could be interpreted narrowly and result in excluding a broad array of
other professionals (such as school counselors and teachers) who may
know the students best. A number of commenters favored retaining the
provision in the NPRM. One commenter recommended that the regulations
be clarified to include an explicit ban on the use of aversive behavior
management strategies under this part.
A few commenters requested that the definition of ``recreation'' in
proposed Sec. 300.22(b)(10) be eliminated. One commenter indicated that
the definition will overreach the intent of IDEA. Others stated that
(1) the services listed would add costs to IDEA as well as
administrative burden because those services would be difficult to
arrange and schedule, and (2) participation in community-based
recreation is a family responsibility. A few commenters requested that
the definition of rehabilitation counseling be amended to add that
counseling should be provided on the basis of individual need and not
on a specific disability category. The commenters stated that because
vocational rehabilitation was provided under the transition grants for
students with significant disabilities, some school systems consider
vocational rehabilitation for these students only.
Some commenters also recommended that the definition of ``social
work services in schools'' be broadened to include individual and group
counseling and other mental health services. A few commenters requested
that proposed Sec. 300.22(b)(13)(iii) be revised to require that school
social work services include working in partnership with parents on
those problems in a child's living situation (home, school and
community) that affect the child's adjustment in school. Other
commenters requested that a new paragraph (vi) be added to the list of
functions relating to working with classrooms of children to help
students with disabilities develop or improve social skills, self
esteem, and self confidence. (See also the comment and discussion under
``psychological services'' related to the role of psychologists and
social workers in the development of positive behavioral interventions
and strategies for IEP goal development.)
One commenter recommended that the function ``Provision of speech
and language services for the habilitation or prevention of
communication impairments'' be deleted from proposed
Sec. 300.22(b)(14)(iv), because it includes vague language, making the
program more litigious and more difficult to administer.
Discussion: The definition of ``psychological services'' in the
NPRM is sufficiently broad to enable psychologists to be involved in
the majority of activities described by commenters, and, therefore, the
definition should not be revised to add other, more specific functions.
Nor is there a need to make substantive changes to the definition
of ``social work services in schools.'' Although psychologists (and
school social workers) may be involved in assisting in the development
of positive behavioral interventions, there are many other appropriate
professionals in a school district who might also play a role in that
activity. The standards for personnel who assist in the development of
positive behavioral interventions will vary depending on the
requirements of the State. Including the development of positive
behavioral interventions in the descriptions of potential activities
under social work services in schools and psychological services
provide examples of the types of personnel who assist in this activity.
These examples of personnel who may assist in this activity are not
intended to imply either that school psychologists and social workers
are automatically qualified to perform these duties or to prohibit
other qualified personnel from serving in this role, consistent with
State requirements.
Regarding the comment requesting clarification to impose a ban on
aversive behavior under this part, the new requirements in section
614(d)(3)(B)(i) of the Act are sufficient to address this concern by
strengthening the ability of the IEP team to address the need for
positive behavioral interventions in appropriate situations. Under
these new requirements, the IEP team must ``consider, if appropriate,
including in the IEP of a student whose behavior impedes his or her
learning or that of others, strategies, including positive behavioral
interventions, strategies, and supports to address that behavior.''
These new requirements are sufficiently broad to address the
commenter's concerns. In meeting their obligations under section
614(d)(3)(B)(i) of the Act, public agencies must ensure that qualified
personnel are used, and may select from a variety of staff for this
purpose.
The definition of ``social work services in schools'' should not be
expanded to include group counseling and other mental health services,
since under the definition as written, social workers could provide
these services if doing so would be consistent with State standards and
the students required such services in order to receive FAPE. However,
the technical change in Sec. 300.22(b)(13)(iii) should be made to
clarify that school social workers work
[[Page 12551]]
in partnership with parents and others on those problems in a child's
living situation (home, school, and community) that affect the child's
adjustment in school. The current definition is sufficiently broad to
enable school social workers to help disabled students work on social
skills.
Recreation should not be deleted from the list of related services.
This is a statutory provision that has been defined in the regulations
since 1977.
The commenters' request relating to ``rehabilitation counseling''
(i.e., to add clarification that it should be provided based on
individual need) is generally the case with all related services.
Adding a specific limitation to rehabilitation counseling could
inappropriately suggest that other services are to be provided without
regard to individual need.
The definition of ``speech-language pathology services'' should not
be revised. This is a longstanding definition that is useful to
qualified speech-language pathologists who provide services to children
with disabilities under these regulations.
Changes: A technical change has been made to the definition of
``social work services in schools.''
Comment: A few commenters supported Note 3 (relating to the use of
paraprofessionals). Some commenters recommended that the note be
amended by requiring proper training and supervision in the areas in
which paraprofessionals are providing services.
Commenters also stated that the regulations must (1) ensure parents
know which services are provided by paraprofessionals; (2) clarify the
service limitations of paraprofessionals; (3) prohibit any independent
development, substantive modification or unapproved provision of
services independent of the supervising related services professional;
(4) ensure that paraprofessionals are not used for IEP decision-making
activities or development or revisions of the child's interventions or
IEP; and (5) ensure these precautions are part of the policy
requirements of Sec. 300.136(f).
Other commenters requested that paraprofessionals who assist in
providing speech-language pathology services must be supervised by a
person who meets the highest requirements in the State for that
discipline.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 3 following this section should be
removed. When paraprofessionals are used to assist in the provision of
special education and related services under these regulations, they
must be appropriately trained and supervised in accordance with State
standards. Since concerns raised by commenters about the use of
paraprofessionals and assistants are addressed in the analysis of
comments under Sec. 300.136(f) of this attachment, it is not necessary
to make further changes to this section.
Changes: Note 3 to this section of the NPRM has been removed.
Comment: Several comments were received on Note 4 relating to the
definition of ``transportation.'' Some commenters recommended that the
note be revised to include accommodations to achieve integrated
transportation, including providing appropriate training to
transportation providers, such as bus drivers, and including the use of
aids.
A few commenters stated that the second sentence in Note 4 implies
that there is no limit to the adaptations that a school must make to
bus equipment to afford a disabled child an opportunity to ride the
regular bus. The commenters added that (1) the IEP team must retain the
authority to determine the appropriate mode of transportation based on
child's needs and financial and logistical burdens of various options,
and (2) as with other related services, transportation must only be
provided to assist a child with disabilities to benefit from special
education.
A number of commenters stated that transportation accommodations
are an LRE issue and, as such, should be determined by each child's IEP
team. These commenters added that accommodations also should be
addressed through section 504 and the ADA, and recommended that the
note be deleted. Another commenter recommended the need to clarify
public agency responsibility to provide necessary transportation to
disabled children even if that transportation is not provided to
nondisabled children.
Other commenters also recommended that Note 4 be deleted. One
commenter stated that the note goes beyond the statute and adds costs
in an outrageous extension of Federal authority. Another commenter
stated that the note could lead school districts to conclude that they
had to buy specialized equipment (e.g., lifts) for even more of their
buses in order to provide integrated transportation, a concept found
nowhere in the Act.
Discussion: In light of the general decision not to use notes in
these final regulations, Note 4 to this section of the NPRM should be
deleted. In response to concerns of commenters, each disabled child's
IEP team must be able to determine the appropriate mode of
transportation for a child based on the child's needs. That team makes
all other decisions relating to the provision of special education and
related services; and transportation is a specific statutory service
listed in the definition of related services.
It is assumed that most children with disabilities will receive the
same transportation provided to nondisabled children, unless the IEP
team determines otherwise. However, for some children with
disabilities, integrated transportation may not be achieved unless
needed accommodations are provided to address each child's unique
needs. If the IEP team determines that a disabled child requires
transportation as a related service in order to receive FAPE, or
requires accommodations or modifications to participate in integrated
transportation with nondisabled children, the child must receive the
necessary transportation or accommodations at no cost to the parents.
This is so, even if no transportation is provided to nondisabled
children.
As with other provisions in these regulations relating to qualified
personnel, all personnel who provide required services under this part,
including bus drivers, must be appropriately trained.
Changes: Note 4 to this section of the NPRM has been removed, the
substance of Note 4 is reflected in the above discussion, and it is
further discussed in Appendix A of these final regulations.
Special Education (Sec. 300.26)
Comment: Some commenters requested that, in implementing the IEP
for disabled students in school-funded placements outside of the school
district, the cost of trips, phone calls, and other expenses incurred
by parents should be covered. Some commenters stated that they are not
reimbursed for official long-distance phone calls made regarding their
child's needs or for trips to attend special IEP meetings. According to
a commenter, one district will pay for the cost of driving the student
to school, but not for the cost of the return trip of the parents.
Several commenters requested that the definition of ``physical
education'' in proposed Sec. 300.24(b)(2)(ii) be amended to change
``adaptive'' to ``adapted,'' because the term was used in the original
regulations, and no rationale has been provided for changing it.
Some commenters expressed support for the definition of ``specially
designed instruction'' as written, while other
[[Page 12552]]
commenters expressed support with modification. Other commenters took
exception to the definition, characterizing it as overly prescriptive.
Other commenters recommended dropping the reference to methodology,
citing case law and the legislative history in support of their view
that methodology should not be included in this definition.
A few commenters stated that the definition of ``vocational
education'' in proposed Sec. 300.24(a)(3) was not complete, and
requested that it be amended to comply with the definition in the Carl
D. Perkins Vocational and Applied Technology Education Act. Other
commenters objected to including ``vocational education'' within the
definition of ``special education,'' asserting that there is no
statutory authority to do so. Other commenters recommended that some
minor modifications be made to the current definition.
A few commenters requested that the regulations clarify the
difference between accommodations that do not change the content of the
curriculum and modifications that do change it. Other commenters
requested that access to the general curriculum be to the maximum
extent appropriate for the child. A few commenters recommended adding
clarifying language to accommodate the distinction between providing
disabled students with a meaningful opportunity to meet the standards
and actually meeting the standards, and stated that the Act recognizes
this distinction by referencing involvement and progress in the general
curriculum.
Some commenters supported the note to proposed Sec. 300.24 (that a
related services provider may be a provider of specially designed
instruction if State law permits). Other commenters stated that the
note should be deleted to eliminate the possibility that individuals
may interpret it to mean that the term ``child with a disability,'' as
defined under proposed Sec. 300.7, might include children who need only
a related service.
Discussion: It is not necessary to revise the definition of ``at no
cost'' under paragraph (b)(1) of this section, since that definition
already addresses the comment relating to the cost of trips, phone
calls, and other expenses incurred by parents of disabled children when
those children are placed outside the school district by a public
agency. If the school district places the child, and the IEP team
determines that the costs of phone calls and trips are relevant to the
student's receipt of FAPE, the public agency placing the child would be
expected to pay for such expenses.
Paragraph (b)(2) concerning ``physical education'' should be
amended to substitute the word ``adapted'' for the word ``adaptive,''
since this is the term that was in the original regulations.
With regard to the definition of ``specially designed
instruction,'' some changes should be made. The committee reports to
Pub. L. 105-17 make clear that specific day-to-day adjustments in
instructional methods and approaches are not normally the sort of
change that would require action by an IEP team. Requiring an IEP to
include such a level of detail would be overly-prescriptive, impose
considerable unnecessary administrative burden, and quite possibly be
seen as encouraging disputes and litigation about rather small and
unimportant changes in instruction. There is, however, a reasonable
distinction to be drawn between a mode of instruction, such as cued
speech, which would be the basis for the goals, objectives, and other
elements of an individual student's IEP and should be reflected in that
student's IEP, and a day-to-day teaching approach, i.e., a lesson plan,
which would not be intended to be included in a student's IEP.
Case law recognizes that instructional methodology can be an
important consideration in the context of what constitutes an
appropriate education for a child with a disability. At the same time,
these courts have indicated that they will not substitute a parentally-
preferred methodology for sound educational programs developed by
school personnel in accordance with the procedural requirements of the
IDEA to meet the educational needs of an individual child with a
disability.
In light of the legislative history and case law, it is clear that
in developing an individualized education there are circumstances in
which the particular teaching methodology that will be used is an
integral part of what is ``individualized'' about a student's education
and, in those circumstances will need to be discussed at the IEP
meeting and incorporated into the student's IEP. For example, for a
child with a learning disability who has not learned to read using
traditional instructional methods, an appropriate education may require
some other instructional strategy.
Other students' IEPs may not need to address the instructional
method to be used because specificity about methodology is not
necessary to enable those students to receive an appropriate education.
There is nothing in the definition of ``specially designed
instruction'' that would require instructional methodology to be
addressed in the IEPs of students who do not need a particular
instructional methodology in order to receive educational benefit. In
all cases, whether methodology would be addressed in an IEP would be an
IEP team decision.
Other changes to the definition of ``specially designed
instruction'' are not needed. The distinction between accommodations
that change the general curriculum and those that do not, as one
commenter requests, would be difficult to make because of the
individualized nature of these determinations. Regardless of the
reasons for the accommodation or modification, it must be provided if
necessary to address the special educational needs of an individual
student.
The words ``maximum extent appropriate'' should not follow the
reference to participation in the general curriculum, because such a
qualification would conflict with the Act's IEP requirements and the
unequivocal emphasis on involvement and progress of students with
disabilities in the general curriculum, regardless of the nature or
significance of the disability.
The term ``vocational education'' in paragraph (b)(5) should not be
amended to conform to the definition in the Carl D. Perkins Vocational
and Applied Technology Education Act. The definition of ``vocational
education'' in the proposed regulations should be retained in these
final regulations since it reflects the definition of that term
contained in the original regulations for this program published in
1977. While the regulatory definition includes all of the activities in
the Perkins Act definition, the substitution of the definition from the
Perkins Act would be too limiting since that definition would not
encompass those activities included in the current definition. The
inclusion of ``vocational education'' in the definition of ``special
education'' is needed to ensure that students with disabilities receive
appropriate, individually-designed vocational educational services to
facilitate transition from school to post-school activities.
In light of the general decision not to use notes in these final
regulations, the note following this section of the NPRM should be
removed. The removal of this note, however, should not be construed as
altering eligibility requirements under these regulations--namely (1) a
child is an eligible child with a disability under Part B if the child
has a covered impairment and requires special education by reason of
the
[[Page 12553]]
impairment; and (2) a child with a disability can receive a related
service only if that service is required to assist the child to benefit
from special education. However, consistent with Sec. 300.26(a)(2), any
related service that is considered special education rather than a
related service under State standards may be considered as special
education. A provision has been added under the definition of ``child
with a disability'' to reflect this concept.
Changes: Paragraph (a)(2) has been amended to add travel training
to the elements contained in the definition of ``special education,''
and a separate definition of travel training has been added to
paragraph (b)(4) as discussed in this attachment under Sec. 300.24.
Paragraph (b)(2) concerning physical education has been revised to
substitute the word ``adapted'' for the word ``adaptive.'' Paragraph
(b)(3) has been revised to make clear that adaptations to instruction,
in the form of specially designed instruction, are made as appropriate
to the needs of the child. The note following this section of the NPRM
has been removed, and the substance of the note is reflected in the
above discussion.
Supplementary Aids and Services (Sec. 300.28)
Comment: A few commenters supported the definition of
``supplementary aids and services,'' as written. Some commenters
requested that the regulations define the term ``educationally related
setting,'' and that examples of supplementary aids and services be
included. Another commenter recommended that the definition be amended
to state that related services could be considered supplementary aids
and services. Other commenters recommended that assistive technology be
considered in the same context as supplementary aids and services.
Discussion: It is not necessary to define the terms used in this
definition. As stated in the analysis of comments relating to
Secs. 300.5 and 300.6 (assistive technology devices and services),
assistive technology devices and services are already recognized as
supplementary aids and services. Under IDEA, aids, supports and
services would be considered during the IEP meeting and if determined
appropriate by the IEP team would be integrated under the appropriate
components of the IEP. Further, with respect to the language about
``related services,'' a change is not needed. If a disabled child
requires a related service in the regular classroom, that related
service must be provided, and there is no reason to identify that
service as a supplementary aid or service.
Changes: None.
Transition Services (Sec. 300.29)
Comment: Many commenters supported the transition services
definition in these regulations, but recommended that the definition be
amended to include, in paragraph (1)(c)(vi), self-advocacy, career
planning, and career guidance. This comment also emphasized the need
for coordination between this provision and the Perkins Act to ensure
that students with disabilities in middle schools will be able to
access vocational education funds.
One commenter recommended that the definition of ``transition
services'' either be narrowed to post-school transition or that other
transitions, such as transition from Part C to Part B, be defined
elsewhere in these regulations.
Discussion: The Act's ``transition services'' definition should be
retained as written. In light of the general decision not to use notes
in these final regulations, the note following this section of the NPRM
should be removed. It is important to clarify that 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, and that the list of activities in the definition is
not intended to be exhaustive.
Additional examples of transition services are not needed because
the current definition is sufficiently broad to encompass these
activities. Nor is it necessary to amend the definition to reference
the Perkins Act, since, under current law, students with disabilities,
including those in middle schools, can participate in these Federally-
funded programs, and must be provided necessary accommodations to
ensure their meaningful participation.
Further, the definition of ``transition services'' should not be
narrowed or expanded to include other transitions, because to do so
could be inconsistent with congressional intent that public agencies
provide students with disabilities the types of needed services to
facilitate transition from school to post-school activities.
Changes: The note following this section of the NPRM has been
removed, and the substance of the note has been added as a new
paragraph (b).
Subpart B
Condition of Assistance (Sec. 300.110)
Comment: A few commenters stated that the proposed regulations at
Secs. 300.110-300.113, as written, would not ensure that States meet
the requirements of section 612(a) and (c) of the Act.
Discussion: It is appropriate to amend Sec. 300.110 to more
explicitly state what is required for compliance with these provisions.
Changes: Section 300.110 has been amended, as noted in the above
discussion.
Free Appropriate Public Education (Sec. 300.121)
(For a brief overview of the changes made regarding the discipline
sections of these regulations, please refer to the preamble.)
Comment: A few commenters asked that the regulations be amended to
adopt a ``no cessation of services'' policy, under which students with
disabilities would be entitled to receive FAPE even during periods of
less than ten days of suspension in a given school year. Some of these
commenters stated that there is no basis to assume that Congress did
not mean what is explicitly stated in section 612(a)(1)(A) of the Act--
that all children are entitled to FAPE, including children who have
been suspended or expelled from school.
A few commenters expressed support for the proposed language which
defines the term ``children with disabilities who have been suspended
or expelled from school'' as meaning children with disabilities who
have been removed from their current educational placement for more
than 10 school days in a given school year, but asked that the
regulations clarify that the 10 school days are cumulative, not
consecutive.
Several commenters recommended deleting the phrase ``in a given
school year,'' stating that the statute allows school personnel to
suspend a disabled child for not more than ten consecutive school days
without the provision of educational services, and that there is no
statutory basis for defining 10 school days to be within a given year.
A number of commenters supported the proposed ``11th day'' rule (i.e.,
that the right to FAPE for disabled children who have been suspended or
expelled begins on the eleventh school day in a school year that they
are removed from their current educational placement). Other commenters
recommended deleting proposed Sec. 300.121(c)(2). Some of these
commenters stated that they agreed with the Supreme Court decision in
Honig versus Doe and with the Department's
[[Page 12554]]
long-standing interpretation of the Act--that a pattern of suspensions
would constitute a change in placement, but objected to the regulations
defining when the ``11th day'' occurs.
One commenter asked whether the provisions of proposed
Sec. 300.121(c) would apply if a child's disability is not related to
the behavior in question. Some commenters were concerned that the
standard from Sec. 300.522 would be unwieldy for short-term suspensions
or should be modified to permit different services for children
suspended or expelled for behavior determined not to be a manifestation
of their disability. Another commenter recommended strengthening the
language of Sec. 300.121 to ensure that the SEA is responsible for
ensuring the provision of FAPE for children who are suspended or
expelled.
Discussion: Section 612(a)(1)(A) of the Act now makes explicit that
FAPE must be available to children with disabilities who are suspended
or expelled, in light of the adverse impact a cessation of educational
services can have on a child with disabilities ability to achieve in
school and to become a self-supporting adult who is contributing to our
society. The Act, however, should not be read to always require the
provision of services when a child is removed from school for just a
few days. School officials need some reasonable degree of flexibility
when dealing with children with disabilities who violate school conduct
rules, and interrupting a child's participation in education for up to
10 school days over the course of a school year, when necessary and
appropriate to the circumstances, does not impose an unreasonable
limitation on a child with disabilities right to FAPE.
On the other hand, at some point repeated exclusions of a child
with disabilities from the educational process will have a deleterious
effect on the child's ability to succeed in school and to become a
contributing member of society. The law ensures that even children with
disabilities who are engaged in what objectively can be identified as
dangerous acts, such as carrying a weapon to school, must receive
appropriate services. (See sections 615(k)(1)(A)(ii) and 615(k)(2)).
Therefore, it is reasonable that children with disabilities who
have been repeatedly suspended for more minor violations of school
codes not suffer greater consequences from exclusions from school than
children who have committed the most significant offenses. For these
reasons, once a child with a disability has been removed from school
for more than 10 school days in a school year, it is reasonable for
appropriate school personnel (if the child is to be removed for 10
school days or less, or the child's IEP team, if the child is to be
suspended or expelled for behavior that is not a manifestation of the
child's disability) to make informed educational decisions about
whether and the extent to which services are needed to enable the child
to make appropriate educational progress in the general curriculum and
toward the goals of the child's IEP.
The change of placement rules referred to in the Supreme Court's
decision in Honig v. Doe, which is based on the Department's long-
standing interpretation of what is now section 615(j) of the Act, are
addressed in the discussion of comments received under Sec. 300.520 in
this attachment, and changes are made in these final regulations as a
result of those comments. However, determining whether a change of
placement has occurred does not answer the question of at what point
exclusion from educational services constitutes a denial of FAPE under
section 612(a)(1)(A) of the Act.
With regard to the standard for services that must be provided to
children with disabilities who have been suspended or expelled from
school, the statute at section 615(k)(3) specifically addresses only
the services to be provided to children who have been placed in interim
alternative educational settings under sections 615(k)(1)(A)(ii) and
615(k)(2) (Secs. 300.520(a)(2) and 300.521), which contemplate
situations in which children are removed for up to 45 days, without
regard to whether the behavior is or is not a manifestation of the
child's disabilities.
In light of the comments received, the regulation would be revised
to recognize that the extent to which services would need to be
provided and the amount of service that would be necessary to enable a
child with a disability to meet the same general standard of
appropriately progressing in the general curriculum and advancing
toward achieving the goals on the child's IEP may be different if the
child is going to be out of his or her regular placement for a short
period of time. For example, a one or two day removal of a child who is
performing at grade level may not need the same kind and amount of
service to meet this standard as a child who is out of his or her
regular placement for 45 days under Sec. 300.520(a)(2) or Sec. 300.521.
Similarly, if the child is suspended or expelled for behavior that is
not a manifestation of his or her disability, it may not make sense to
provide services in the same way as when the child is in an interim
alternative educational setting.
As part of its general supervision responsibility under
Sec. 300.600, each SEA must ensure compliance with all Part B
requirements, including the requirements of Sec. 300.121(d) regarding
FAPE for children who are removed from their current educational
placement for more than ten school days in a given school year.
Changes: The regulation has been revised to provide that when a
child with a disability who has been removed from his or her current
educational placement for more than 10 school days in a school year is
subjected to a subsequent removal for not more than 10 school days at a
time and when a child with a disability is suspended or expelled for
behavior that is not a manifestation of the child's disability, the
public agency must provide services to the extent necessary to enable
the child to appropriately progress in the general curriculum and
appropriately advance toward achieving the goals in the child's IEP.
In the case of a child who is removed pursuant to
Sec. 300.520(a)(1) for 10 school days or less at a time, this
determination is made by school personnel, in consultation with the
child's special education teacher. In the case of a child whose removal
constitutes a change of placement for behavior that is not a
manifestation of the child's disability pursuant to Sec. 300.524, this
determination is made by the child's IEP team.
The regulation has also been revised to clarify that if a child is
removed by school personnel for a weapon or drug offense under
Sec. 300.520(a)(2) or by a hearing officer based on a determination of
substantial likelihood of injury under Sec. 300.521, the public agency
provides services as specified in Sec. 300.522.
Comment: Some commenters expressed support for Note 1 (which
clarifies the responsibility of public agencies to make FAPE available
to children with disabilities beginning no later than their third
birthday) and recommended that the substance of the note be
incorporated into the text of the regulations. A few commenters
suggested revising Note 1 to clarify that children with disabilities
whose third birthday occurs during the summer are not entitled to
receive special education and related services until school starts for
the fall term.
Discussion: The responsibility of public agencies to make FAPE
available to children with disabilities beginning no later than their
third birthday means that an IEP (or an IFSP consistent with
Sec. 300.342) has been developed and is
[[Page 12555]]
being implemented for the child by that date, with the IEP specifying
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. (Section 612(a)(9) of the Act). If a child
with a disability is determined eligible to receive Part B services,
the public agency must convene a meeting and develop an IEP by the
child's third birthday, and must in developing the IEP determine when
services will be initiated. For 2-year olds served under Part C, the
public agency must meet with the Part C lead agency and the family to
discuss the child's transition to Part B services at least 90 days
(and, at the discretion of the parties, up to 6 months) before the
child turns 3. (See section 637 (a)(8)) of the Act). In order to ensure
a smooth transition for children served under Part C who turn 3 during
the summer months, a lead agency under Part C may use Part C funds to
provide FAPE to children from their third birthday to the beginning of
the following school year. (See section 638 of the Act).
Children with disabilities who have their third birthday during the
summer months are not automatically entitled to receive special
education and related services during the summer, and the public agency
must provide such services during the summer only if the IEP team
determines that the child needs extended school year services at that
time in order to receive FAPE. The substance of Note 1 should be
incorporated into the text of the regulation, because it sets forth
long-standing requirements that are based on the statute (see analysis
of ``General Comments'' relating to the use of notes under this part).
Changes: The substance of Note 1 has been added to the text of the
regulations, and the note has been deleted.
Comment: Some commenters expressed support for Note 2 (regarding
the determination of eligibility for children advancing from grade to
grade), and recommended that the substance of the note be incorporated
into the text of the regulations. A few of the commenters suggested
deleting the second sentence of Note 2 (relating to the IEP team)
before making the note a regulation. Other commenters recommended that
Note 2 be deleted, as it confuses the IEP team with the team that
determines eligibility.
Discussion: The revised IEP requirements at Sec. 300.347 require
public agencies to provide special education and related services to
enable students with disabilities to progress in the general
curriculum, thus making clear that a child is not ineligible to receive
special education and related services just because the child is, with
the support of those individually designed services, progressing in the
general curriculum from grade-to-grade. The group determining the
eligibility of a child who has a disability and who is progressing from
grade-to-grade must make an individualized determination as to whether,
notwithstanding the child's progress from grade-to-grade, he or she
needs special education and related services. The substance of Note 2,
as revised, should be incorporated into the text of the regulation,
because it sets forth long-standing requirements that are based on the
statute (see analysis of ``General Comments'' relating to the use of
notes under this part).
Changes: Section 300.121 has been revised to incorporate the
substance of Note 2, and the note deleted.
Comment: None.
Discussion: To ensure that children with disabilities have
available FAPE, consistent with the requirements of this part, it is
important for the Department to be able to verify that each State's
policies are consistent with their responsibilities regarding important
aspects of their obligation to make FAPE available. Therefore,
Sec. 300.121(b) should be revised to provide that each State's policy
regarding the right to FAPE of all children with disabilities must be
consistent with the requirements of Secs. 300.300-300.313.
Changes: Section 300.121(b) has been revised to provide that the
States' policies concerning the provision of FAPE must be consistent
with the requirements of Secs. 300.300-300.313.
Exception to FAPE for Certain Ages (Sec. 300.122)
Comment: Some commenters expressed support for Sec. 300.122(a)(2),
which sets forth an exception to the FAPE requirement for certain youth
who are incarcerated in adult correctional facilities, and Note 2 which
includes clarifying language from the House Committee Report. A few
commenters wanted the regulation to clarify the responsibility of a
State where reasonable efforts to obtain prior records from the last
reported educational placement have been made, but no records are
available. The commenter also requested adding a note to clarify that,
even if State law does not require the provision of FAPE to students
with disabilities, ages 18 through 21, who, in the last educational
placement prior to their incarceration in an adult correctional
facility were not identified as a child with a disability and did not
have an IEP under Part B of the Act, the State may choose to serve some
individuals who fit within that exception and include those individuals
within its Part B child count.
Discussion: Before determining that an individual is not eligible
under this part to receive Part B services, the State must make
reasonable efforts to obtain and review whatever information is needed
to determine that the incarcerated individual had not been identified
as a child with a disability and did not have an IEP in his or her last
educational placement prior to incarceration in an adult correctional
facility. The steps a State takes to obtain such information may
include a review of records, and interviewing the incarcerated
individual and his or her parents.
A State may include in its Part B child count an eligible
incarcerated student with a disability to whom it provides FAPE, even
if the State is permitted under Sec. 300.122(a)(2) and State law to
exclude that individual from eligibility. It is not necessary to
provide additional clarification regarding these issues in the
regulations.
Proposed Note 2 quoted from the House Committee Report on Pub. L.
105-17 which, with respect to paragraph (a)(2) of this section
(relating to certain students with disabilities in adult prisons),
stated that:
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. R. Rep. No. 105-95, p. 91 (1997))
The concepts in this note are important in the implementation of
this program. Appropriate substantive portions of the note should be
clarified and included in the regulations. Consistent with the decision
to not include notes in these final regulations, the note should be
removed.
[[Page 12556]]
Changes: Section 300.122(a)(2) has been revised by adding
appropriate substantive portions of Note 2 to the text of the
regulation, to specify situations in which the exception to FAPE for
students with disabilities in adult prisons does not apply.
Comment: Some commenters expressed support for Sec. 300.122(a)(3)
(which provides that the obligation to make FAPE available does not
apply to students with disabilities who have graduated from high school
with a regular high school diploma), and Note 1 (which clarifies that
graduation with a regular high school diploma is a change of placement
requiring notice and reevaluation), and recommended that the substance
of the note be included in the text of the regulation. Other commenters
requested that Sec. 300.122(a)(3) and Note 1 be deleted because there
is no statutory basis for these regulatory interpretations. Several
commenters stated that, in most States, graduation is dependent on a
student's having met specific standards (State, local, or both).
A few commenters stated that some States have developed procedures
for disabled students to graduate with a diploma based on the IEP, and
recommended that the term ``regular'' be deleted from
Sec. 300.122(a)(3). Other commenters recommended deleting the language
about graduating with a regular high school diploma, and added that
many States have, with public input, established multiple graduation
diplomas and certificates. Other commenters recommended deleting the
provision, and added that some States are shifting from diplomas to
certificates of mastery based on what students know. A few commenters
stated that receipt of a diploma or age 21 is the only reason for
termination of eligibility, and, therefore, the requirement is
redundant and should be deleted.
Many commenters recommended deleting Note 1, stating that
graduation is not a change of placement, and that reevaluation is not
necessary and should not be required. These commenters stated the basis
for their recommendation by adding that: (1) With the addition of the
new IEP requirements such as benchmarks, reporting to parents, and
examination of transition needs at age 14, the reevaluation requirement
becomes redundant; (2) if the parents and student are provided notice
of the impending graduation and the IEP team concurs, the additional
step of reviewing current data and determining the nature and scope of
a reevaluation is unnecessary and will consume staff time and
resources; and (3) if parents believe their child should not graduate,
they have procedural avenues available to contest the graduation.
A few commenters stated that Sec. 300.122(a)(3) should not be
interpreted as prohibiting a State from using Part B funds to serve
students aged 18 through 21 who have attained a regular diploma but who
are still in the State-mandated age range.
Discussion: Because the rights afforded children with disabilities
under IDEA are important, the termination of a child's eligibility
under Part B is equally important. When public agencies make the
determination as to whether the Part B eligibility of a student with a
disability should be terminated because the student has met the
requirements for a regular high school diploma or that the student's
eligibility should continue until he or she is no longer within the
State-mandated age of eligibility, it is important to ensure that the
student's rights under the Act are not denied.
As the comment notes, a number of the new IEP requirements focus
increased attention on how children with disabilities can achieve to
the same level as nondisabled children. In implementing these new
requirements, it is important that the parents, participating in
decisions made in developing their child's IEP--including decisions
about their child's educational program (e.g., the types of courses the
child will take) and the child's participation in State and district-
wide high stakes assessments--understand the implications of those
decisions for their child's future eligibility for graduation with a
regular diploma.
The commenters persuasively point out that, there is a less
burdensome way to protect the interests of students with disabilities
under the Act whose eligibility for services is ending because of
graduation with a regular diploma or because they are no longer age
eligible. If an eligibility change is the result of the student's aging
out or receipt of a regular high school diploma, the statutory
requirement for reevaluation before a change in a student's eligibility
under section 614(c)(5) should not be read to apply.
Graduation with a regular high school diploma ends a student's
eligibility for Part B services, and is, therefore, a change in
placement requiring notice under Sec. 300.503 a reasonable time before
the public agency proposes to graduate the student. The new
requirements for transition planning and for reporting to parents
regarding the progress of their child, together with the notice to them
regarding proposed graduation, are sufficient to ensure that parents
are appropriately informed to protect the rights of their child. The
parents would have the option, as with any public agency proposal to
change the educational program or placement of a child with a
disability, to seek to resolve a disagreement with the proposal to
graduate the student through all appropriate means, including mediation
and due process hearing proceedings.
Exiting or graduating a student with a disability with a credential
that is different from the diploma granted to students who do not have
disabilities does not end an individual's eligibility for Part B
services, and is not a change in placement requiring notice under
Sec. 300.503. The second paragraph of proposed Note 1 clarified that if
a high school awards a student with a disability a 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. This clarification is consistent with the statute and final
regulations. However, consistent with the decision to not include notes
in the final regulations, the note should be deleted.
An SEA or LEA may elect to use Part B funds for services for a
student with a disability who has graduated with a regular high school
diploma but who is still within the State-mandated age range for Part B
eligibility, but may not include the student in its Part B child count.
For children aged 19 through 21, eligibility for services is a matter
of State discretion.
Changes: Section 300.122(a)(3) has been revised to make clear that
graduation from high school with a regular diploma is a change in
placement requiring notice in accordance with Sec. 300.503. Section
300.534(c), also has been revised to clarify that a reevaluation is not
required before the termination of a student's Part B eligibility due
to graduation with a regular high school diploma, or ceasing to be age-
eligible under State law. Note 1 has been removed.
Child Find (Sec. 300.125)
Comment: A few commenters expressed support for the statutory
provision reflected in Sec. 300.125(c), which states that nothing in
the Act requires that children be classified by their disability. Some
commenters believed that Sec. 300.125(c) is inconsistent with
Sec. 300.125(b)(3), which requires a
[[Page 12557]]
description of the policies and procedures that the State will use to
obtain the number of children by disability category, and Sec. 300.751,
which requires the reporting of data by disability category.
Some commenters recommended that Note 2 (which states that the
services and placement needed by each child with a disability must be
based upon the child's unique needs and may not be determined or
limited based upon a category of disability) be incorporated into the
regulations. Other commenters recommended deleting the phrase ``and may
not be determined or limited based upon a category of disability,'' so
as not to conflict with Sec. 300.346(a)(2)(iii) (consideration of
special factors relating to children who are blind or visually
impaired). Other commenters stated that Note 2 should be deleted
because it deals with services and placements, rather than child find.
A few commenters requested that the regulations clarify the child
find requirements for children birth through age 3, because the
requirements under Parts B and C are different, and it is not clear
which must be followed. One commenter recommended that Note 3 (which
describes the link between child find under Parts B and C) be
incorporated into the regulations because it promotes interagency
coordination. Other commenters stated that Note 3 is unnecessary and
should be deleted because the text of Sec. 300.125 sufficiently covers
the statutory requirement.
Some commenters expressed support for Note 4 (relating to highly
mobile children, such as the homeless and migrant children). A few
commenters requested more guidance related to a State's obligation to
migrant children. Other commenters stated that States are already doing
their best to find these children, but added that it is (1) virtually
impossible to meet fully an obligation to ensure that all of these
children are found, and (2) extremely difficult to obtain accurate data
on these populations.
Discussion: Section 300.125(c), which clarifies that the Act does
not require public agencies to label children by disability, is not
inconsistent with the data reporting requirements in
Secs. 300.125(b)(3) and 300.751. The statement in Note 2--that the
services and placement needed by each child with a disability may not
be determined or limited based upon a category of disability--is
crucial in implementing both the child find and FAPE requirements.
Thus, the substance of the note has been included in this discussion,
and has been incorporated in the text of the regulations at
Sec. 300.300(a)(3)(ii). Specifying that services and placement not be
determined or limited based on category of disability is not
incompatible with the special considerations related to children who
are blind and visually impaired.
It is clear, without the need for further clarification in the
regulations, that the child find and evaluation procedures under Part C
must be followed when the purpose is to locate, identify and evaluate
infants and toddlers with disabilities who may be eligible for early
intervention services under that Part, and that the child find and
evaluation procedures under Part B must be followed when the purpose is
to locate, identify and evaluate children with disabilities who may be
eligible for special education and related services under that part.
Note 3 provided needed clarification of long-standing statutory
requirements, under Parts B and C regarding the respective
responsibilities of the SEA and Part C lead agency for child find
activities. In States in which the SEA and Part C lead agency are
different, each agency remains responsible for ensuring that the child
find responsibilities under its program are met, even if the agencies,
through an interagency agreement, delegate to one agency the primary
role in child find for the birth through two population. When
different, the SEA and Part C lead agency are encouraged to cooperate
to avoid duplication and ensure comprehensive child find efforts for
the birth through two population. The substance of the note should be
incorporated into the text of the regulation.
Although it is difficult to locate, identify, and evaluate highly
mobile children with disabilities, it is important to stress that the
States' child find responsibilities under Sec. 300.125 apply equally to
such children and that the substance of Note 4 should be added to the
text of Sec. 300.125(a).
Changes: The substance of Notes 1, 3, and 4 has been added to the
text of the Sec. 300.125; the substance of Note 2 has been added to the
text of Sec. 300.300(a)(3)(ii); and the four notes have been deleted.
Procedures for Evaluation and Determination of Eligibility
(Sec. 300.126)
Comment: A few commenters requested that the regulation specify
best practices for evaluation and the determination of eligibility.
Discussion: The use of best practices in all educational programs
and activities in order to help ensure that all children, including
children with disabilities, are prepared to meet high standards is, of
course, strongly encouraged, and the Department funds many programs to
identify and disseminate best practices. Section 300.126, however,
addresses the eligibility requirements relating to evaluation and the
determination of eligibility that States must meet, rather than best
practices.
Changes: None.
Confidentiality of Personally Identifiable Information (Sec. 300.127)
Comment: None.
Discussion: In the NPRM, Sec. 300.127 included a note that
contained a reference to the Family Education Rights and Privacy Act
(FERPA) in 34 CFR Part 99. There is a clear relationship between the
confidentiality requirements in IDEA and those in FERPA. The
regulations in Secs. 300.560--300.577 are drawn directly from the FERPA
regulations.
Changes: Consistent with the decision to eliminate notes from the
final regulations, the note following this section has been removed.
Least Restrictive Environment (Sec. 300.130)
Comment: A few commenters requested that ``State-approved private
schools and facilities'' be added to the list of placement options
included in the continuum, as set forth in the note following
Sec. 300.130.
A few commenters were concerned that the proposed regulations did
not include the State eligibility requirement, set forth in the prior
regulations at Sec. 300.132(b), that each State include in its State
plan the number of children within each disability category who are
participating in regular education programs, and the number of children
with disabilities who are in separate classes or separate school
facilities or otherwise removed from the regular education environment.
A few commenters stated that the note and Sec. 300.551 should be
deleted; they assert that there is no requirement in the statute for a
continuum, and that the note and the regulation are inconsistent with
the statute's strengthened requirement that children with disabilities
be integrated.
Discussion: As described in Sec. 300.551(b)(1), the continuum
includes the placement option of ``special schools.'' The requested
revision regarding State-approved private schools and facilities is,
therefore, not necessary. State-approved private schools and facilities
are already covered by the continuum.
[[Page 12558]]
The requirement in the prior regulations at Sec. 300.132(b), that
each State include in its State plan the number of children within each
disability category who are participating in regular education
programs, and the number of children with disabilities who are in
separate classes or separate school facilities or otherwise removed
from the regular education environment, was based upon an express
provision in the prior statute at section 612(5)(B) that was removed
from the statute by the IDEA Amendments of 1997. Those amendments also
eliminated the requirement that each State submit a State plan, instead
requiring that each State demonstrate eligibility under Part B by
having specified policies and procedures on file with the Secretary.
The Department will, however, continue to collect data regarding
placement in the LRE under section 618 of the Act.
The statute, at section 607(b), prohibits the Secretary from
implementing or publishing regulations implementing IDEA that would
procedurally or substantively lessen the protections provided to
children with disabilities, as set forth in the Part B regulations as
in effect on July 20, 1983, including those relating to placement in
the least restrictive environment, except to the extent that the
revised regulation reflects the clear and unequivocal intent of the
Congress in legislation. The provisions of Sec. 300.551 in the NPRM
were included in the regulations as in effect on July 20, 1983.
Therefore, those provisions must, consistent with section 607(b) of the
Act, be retained in the regulations. In fact, the Senate and House
Committee Reports on Pub. L. 105-17 support the continuing importance
of the continuum provision:
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. (S. Rep. No. 105-17, p. 11; H. R. Rep.
No. 105-95, p. 91 (1997))
The substance of the note is helpful in implementing the LRE
requirements, and should be included in the text of the regulations.
Changes: Consistent with the decision to delete notes from the
final regulations, the note following Sec. 300.130 in the NPRM has been
removed. The substance of the note has been incorporated into paragraph
(a) of this section.
Comment: A number of commenters expressed concerns about the
provisions of Sec. 300.130(b), regarding the steps that a State must
take if it distributes State funds on the basis of the type of setting
in which a child is served. Some commenters were concerned that this
provision not be implemented in a way that would negatively impact
State funding formulas for State schools for the deaf. Other commenters
requested that the regulations provide clear guidance as to what a
State must do to determine whether its funding mechanism is resulting
in placements that violate the least restrictive environment
requirements of the Act.
A few commenters asked that the regulations make clear that
individual needs, rather than a State's finding mechanism must drive
placement decisions, but that a State is not required to change the way
in which it distributes State funds to public agencies unless the
funding mechanism results in placement decisions that violate Part B's
LRE requirements. Other commenters requested that the regulations be
revised to require that a State's assurance under Sec. 300.130(b)(2)
must specify the steps the State will take by a date certain (no later
than the end of the following fiscal year) to revise its funding
mechanism.
Discussion: The provisions of Sec. 300.130(b) are unchanged from
section 612(a)(5)(B) of the Act. A State is not required to revise a
funding mechanism by which the State distributes State funds on the
basis of the type of setting in which a child is served, unless it is
determined that the State does not have policies and procedures to
ensure that the funding mechanism does not result in placements that
violate the LRE requirements of Secs. 300.550-300.556. The Senate and
House Committee Reports on Pub. L. 105-17 emphasize the importance of
section 615(a)(5)(B), stating that:
The bill amends the provisions on least restrictive environment
* * * to ensure that the state's funding formula does not result in
placements that violate the requirement.
The committee supports the long standing policy that to the
maximum extent appropriate, children with disabilities are educated
with children who are nondisabled and that special separate
schooling, or other removal of children with disabilities from the
regular educational environment occurs only when 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. (S. Rep. No. 105-17, p. 11; H. R. Rep. No. 105-95,
p. 91 (1997)) Further clarification in the regulation is not needed.
Changes: None.
Transition of Children From Part C to Preschool Programs (Sec. 300.132)
Comment: A few commenters expressed concern regarding the cost of
home visits, especially in large geographic areas, that would be needed
to implement the transition requirements of Sec. 300.132.
Discussion: The provisions of Sec. 300.132 are drawn from the
statutory requirements at section 612(a)(9), and do not set forth any
additional requirements. While Sec. 300.132(c) requires that each LEA
participate in transition planning conferences arranged by the
designated lead agency under section 637(a)(8) (which requires the lead
agency to convene such a conference), Sec. 300.132 does not require any
home visits. Therefore, no revision is necessary.
Changes: None.
Comment: A few commenters requested that the regulation be revised
to make clear that the pendency provisions of Sec. 300.514 apply to
children transitioning from early intervention services under Part C to
preschool special education and related services under Part B.
Discussion: The pendency provision at Sec. 300.514(a) does not
apply when a child is transitioning from a program developed under Part
C to provide appropriate early intervention services into a program
developed under Part B to provide FAPE. Under Sec. 300.514(b), if the
complaint requesting due process involves the child's initial admission
to public school, the public agency responsible for providing FAPE to
the child must place that child, with the consent of the parent, into a
public preschool program if the public agency offers preschool services
directly or through contract or other arrangement to nondisabled
preschool-aged children until the completion of authorized review
proceedings.
Changes: None.
Comment: One commenter expressed concern that Sec. 300.132(b)
suggests that a program of special education and related services be in
place for each child with a disability on his or her third birthday,
even if the birthday occurs during the summer and the child does not
need extended school year services.
Discussion: Section 612(a)(9) of the Act requires that, by the
third birthday of a child with a disability participating in early
intervention programs assisted under Part C who will participate in
preschool programs assisted under Part B, an IEP or, if consistent with
Sec. 300.342(c) and section 636(d) of the
[[Page 12559]]
Act, an IFSP, has been developed and must be implemented for the child.
This means that if a child with a disability is determined eligible to
receive Part B services, the public agency must convene a meeting and
develop an IEP by the child's third birthday, and must, in developing
the IEP, determine when services will be initiated. Children with
disabilities who have their third birthday during the summer months are
not automatically entitled to receive special education and related
services during the summer, and the public agency must provide such
services during the summer only if the IEP team determines that the
child needs extended school year services during the summer in order to
receive FAPE.
Changes: The regulation has been revised to clarify that decisions
about summer services for children who turn three in the summer are
made by the IEP team.
Comment: A few commenters requested that the regulation be revised
to clarify that representation of an LEA in the transition planning
process would most appropriately include all members of the IEP team,
in order to further ``smooth'' the transition process and ensure
appropriate attention to the child's needs.
Discussion: Section 612(a)(9) of the Act leaves to each LEA the
responsibility to determine who will most appropriately represent the
agency in transition planning conferences. The requested revision goes
beyond the requirements of the Act.
Changes: None.
Comment: A few commenters requested that a definition of the term
``effective'' be included in the regulations.
Discussion: It is not necessary to provide a definition of the term
``effective,'' and doing so would restrict the flexibility needed to
implement the Act for a very heterogeneous group of children.
Changes: None.
Comment: A few commenters requested that the regulations be revised
to require that: (1) the transition planning conference be incorporated
into the required timelines under Part B of the Act for determining
eligibility and developing an IEP; and (2) LEAs acknowledge and
consider existing documentation related to eligibility and service
planning prior to conducting an individual evaluation of a child
referred from the Part C system.
Discussion: The Part C regulations require, at Sec. 303.148(b)(2),
that the lead agency convene, with family approval, a transition
planning conference at least 90 days, and at the discretion of the
parties, up to 6 months before the third birthday of a toddler
receiving early intervention services. The Part B regulations require
that an IEP be developed and implemented for children with disabilities
by their third birthday. It is inappropriate to specify further
timelines in Sec. 300.132. Section 300.533 permits an LEA, if
appropriate, to review existing data regarding a child with a
disability (including a child who has been referred by the lead agency)
as part of an initial evaluation.
Changes: None.
Comment: A few commenters requested that the regulation be revised
to emphasize the responsibility of the lead agency to ensure that the
LEA receive advance notice of any transition planning conference at
which the participation of the LEA is required.
Discussion: The Part C regulations require at Sec. 303.148(b) that
the lead agency notify the local educational agency in which a child
with a disability resides when the child is approaching the age of
three, and convene, with family approval, a transition planning
conference which includes the lead agency, the family and the LEA at
least 90 days, and at the discretion of the parties, up to 6 months
before the child's third birthday. Implicit in these requirements is
the requirement that the lead agency inform the LEA early enough so
that the LEA can arrange to participate in the conference. Additional
clarification in the Part B regulations is not necessary.
Changes: None.
Private Schools (Sec. 300.133)
Comment: A few commenters requested that the regulations be revised
to require each State to include, as part of the policies and
procedures that it must have on file with the Secretary in order to
establish eligibility under Part B of the Act, the policies and
procedures that the State has established to comply with the provisions
of Sec. 300.454(b), which requires that each LEA consult with
representatives of private school children with disabilities in making
determinations regarding the provision of special education and related
services to children with disabilities who have been placed by their
parents in private schools.
Discussion: Section 300.133 specifically requires that each State
``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.'' Thus, the regulation already requires that the
procedures required by Sec. 300.454(b) be included in the policies and
procedures that each State must have on file to establish eligibility.
Changes: None.
Comprehensive System of Personnel Development (Sec. 300.135)
Comment: A few commenters requested that the regulation be revised
to require that each State, in developing its comprehensive system of
personnel development, consider the need for bilingual special
education and assistive technology instructors. Other commenters
requested that the regulations be revised to require that special
education, regular education, and related services personnel be trained
regarding the use of home instruction and the circumstances under which
such instruction is appropriate. Other commenters requested that the
regulation be revised to require that each State have on file with the
Secretary policies and procedures on the equitable participation of
private school personnel in staff development, inservice, etc.
Discussion: The CSPD provisions in Secs. 300.380-300.382 require
each State to develop and implement a CSPD to ensure ``an adequate
supply of qualified special education, regular education, and related
services personnel'' (Sec. 300.380(a)(2)), and that ``all personnel who
work with children with disabilities * * * have the skills and
knowledge necessary to meet the needs of children with disabilities''
(Sec. 300.382). This would include, for example, consideration of the
needs of personnel serving limited English proficient students and
students who need assistive technology services and devices. The Act
and regulations leave to each State the flexibility to determine the
specific personnel development needs in the State.
Matters related to the participation of private school staff in
inservice training and other personnel development activities are
decisions left to the discretion of each State and LEA, and, therefore,
should not be addressed under this part.
Changes: None.
Comment: None.
Discussion: The Senate and House committee reports on Pub. L. 105-
17, in reference to the CSPD requirements of this section state that:
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
[[Page 12560]]
practices, materials, and technology. (S. Rep. No. 105-17, p. ; H.
R. Rep. No. 105-95, p. 93 (1997))
The 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.
Changes: Consistent with the decision to not include notes in the
final regulations, the note following this section has been deleted.
Personnel Standards (Sec. 300.136)
Comment: Commenters made a number of suggestions regarding general
modifications to this section. Some commenters expressed concern that
in no case should children with disabilities receive services from
individuals who do not meet the highest requirements applicable to
their professions. Commenters recommended clarification requiring LEAs
to ensure that all personnel are adequately trained to meet all the
requirements of the IDEA, with emphasis on any requirement on which the
LEA has been found by the SEA to be out of compliance, such as the
failure to provide necessary assistive technology devices and services.
Some commenters recommended that the definition of ``appropriate
professional requirements in the State'' in Sec. 300.136(a)(1) be
amended to include an explicit reference to ``professionally-
recognized'' entry level requirements. Other commenters requested
additional clarification regarding the term ``highest requirements in
the State.'' Those commenters who interpreted the term as imposing the
maximum standard recommended that the definition be amended to specify
that every provider of special education and related services must have
a doctorate. Some commenters recommended clarification that highest
requirements in the State are the minimum requirements established by a
State which must be met by personnel providing special education and
related services to children with disabilities under Part B.
Numerous comments were received regarding Note 1 to this section of
the NPRM, and regarding Note 3 as it relates to paragraphs (b) and (c)
of this section. A number of commenters indicated that they had found
Note 1 to be extremely useful in understanding the scope of this
section; however, other commenters recommended that Note 1 either be
deleted entirely, or that the substance of the note be incorporated
into the text of Sec. 300.136. While many commenters recommended that
Note 3 either be retained as a note or incorporated into the
regulations, other commenters recommended that Note 3 be deleted
because it would ``nullify'' the requirements of this section.
Discussion: The substance of Sec. 300.136 of the NPRM has been
retained in these final regulations, but the notes have been removed.
Section 300.136 incorporates the provisions on personnel standards
contained in Sec. 300.153 of the current regulations, with the addition
of the new statutory amendments in section 612(a)(15)(B)(iii) and (C)
of the Act.
The IDEA Amendments of 1997 do not alter States' responsibilities
to (1) establish policies and procedures relating to the establishment
and maintenance of standards for ensuring that personnel necessary to
carry out the purposes of this part are appropriately and adequately
prepared and trained, (2) establish their own minimum standards for
entry-level employment of personnel in a specific profession or
discipline providing special education and related services to children
with disabilities under these regulations based on the highest
requirements in the State across all State agencies serving children
and youth with disabilities, and (3) if State standards are not based
on the highest requirements in the State applicable to a specific
profession or discipline, take specific steps to upgrade all personnel
in that profession to appropriate State qualification standards by a
specified date in the future.
Contrary to the suggestion made by commenters, the Act's personnel
standards provisions are not intended to be a mechanism for addressing
problems that result from the denial of special educational services to
children with disabilities under Part B. If an SEA finds that any of
its public agencies are out of compliance with the requirements of Part
B, the SEA, in accordance with the general supervision requirements of
section 612(a)(11) of the Act and Sec. 300.600 of these regulations,
must take whatever steps it determines are necessary to ensure the
provision of FAPE to children with disabilities who are eligible for
services under Part B. In addition, through the comprehensive system of
personnel development (CSPD), an SEA must conduct a needs assessment
and identify areas of personnel shortages, as well as describe the
strategies it will use to address its identified needs for preparation
and training of additional personnel necessary to carry out the
purposes of Part B.
There is no need to clarify the regulatory definitions of
``appropriate professional requirements in the State'' in
Sec. 300.136(a)(1) or ``highest requirements in the State applicable to
a specific profession or discipline'' in Sec. 300.136(a)(2). Section
300.136 incorporates verbatim the definitions of these terms contained
in the current regulations implementing the Act's personnel standards
provisions, which were added to Part B by the Education of the
Handicapped Act Amendments of 1986, Pub. L. 99-457.
These definitions are consistent with the congressional intent that
all personnel in a specific profession or discipline meet the same
standards across all State agencies; nevertheless, they still afford
States flexibility in determining the steps that must be taken to
upgrade all personnel in a specific profession or discipline to meet
applicable State qualification standards if the SEA's standard is not
based on the highest requirements in the State applicable to the
profession. The definition of ``highest requirements in the State'' is
based on the highest entry-level academic degree required for
employment in a specific profession or discipline across all State
agencies.
As explained in Note 1 to this section of the NPRM, these
regulations require a State to use its own existing requirements to
determine the standards appropriate to personnel who provide special
education and related services under Part B of the Act, and nothing in
Part B requires that all providers of special education and related
services attain a doctorate or any other specified academic degree,
unless the State standard requires this academic degree for entry-level
employment in that profession or discipline.
While States may consider professionally-recognized standards in
deciding what are ``appropriate professional requirements in the
State,'' there is nothing in the statute that requires States to do so.
Rather, these matters appropriately are left to States. Therefore, to
clarify the extent of flexibility afforded to States in meeting the
Act's personnel standards requirements, a new paragraph (b)(3) should
be added to these final regulations, and provides, in accordance with
Note 1 to this section, that nothing in these regulations requires
States to set any specified training standard, such as a master's
degree, for entry-level employment of personnel who provide special
education and related services under Part B of the Act.
States also have the flexibility to determine the specific
occupational categories required to provide special education and
related services and to revise or expand those categories as
[[Page 12561]]
needed. Therefore, the clarification regarding this issue contained in
the note to the current regulation should be incorporated as part of
paragraph (a)(3) in the definition of ``specific profession or
discipline.''
Despite commenters' concerns that Note 3 would ``nullify'' the
requirements of this section, experience in administering the Act's
personnel standards provisions has demonstrated that there is a need to
afford States that have only one entry-level academic degree for
employment of personnel in a particular profession or discipline the
ability to modify that standard if the State determines that
modification of the standard is necessary to ensure the provision of
FAPE to all children with disabilities in the State. Therefore, the
substance of Note 3 should be incorporated into this section as
paragraph (b)(4).
Changes: Note 1 has been removed as a note and incorporated, as
appropriate, both into the above discussion and into Sec. 300.136. Note
2 has been removed as a note, and, as discussed later in this
attachment, the substantive portion of Note 2 has been incorporated
into Sec. 300.136(g) of these final regulations. Note 3 has been
removed as a note and has been incorporated into Sec. 300.136, as
explained below.
Paragraph (a)(3) has been amended by adding a new paragraph (iv),
which states that the definition is not limited to traditional
occupational categories.
New paragraphs (b)(3) and (b)(4) have been added, which provide
that (1) nothing in this part requires a State to establish a specified
training standard (e.g., a masters degree) for personnel who provide
special education and related services under Part B of the Act, and (2)
a State with only one entry-level academic degree for employment of
personnel in a specific profession or discipline, may modify that
standard without violating the other requirements of this section.
Comment: Numerous comments were received regarding the role of
paraprofessionals and assistants under Part B. Some commenters strongly
cautioned against additional regulation since determinations regarding
the definitions of paraprofessionals and assistants and the scope of
their responsibilities will vary widely from State to State and across
disciplines. These commenters also pointed out that Congress chose to
provide only minimal guidance in this area. Other commenters made a
number of specific suggestions for regulatory changes. Some commenters
recommended that the language in paragraph (f) be changed from ``may''
to ``shall'' to make it mandatory for States to use paraprofessionals
and assistants. Other commenters, who did not support the use of
paraprofessionals and assistants to assist in the provision of services
under Part B, recommended regulations prohibiting their use.
Many commenters recommended that the regulations clarify that
paraprofessionals and assistants who assist in the provision of speech
pathology and audiology services under these regulations must be
supervised by an individual who meets the highest entry-level academic
degree requirement applicable to that profession. Similarly, commenters
requested clarification that all paraprofessionals and assistants
assisting in the provision of special education and related services
under Part B must meet their profession's or discipline's highest
entry-level academic degree requirement.
Some commenters recommended that the terms ``paraprofessionals''
and ``assistants'' be defined separately, and that the roles and
responsibilities and training be set out in the regulations so that all
States could have the same definitions, since differences in
definitions and responsibilities among States could interfere with the
rights of children with disabilities to receive appropriate services
under Part B. These commenters also provided suggested definitions to
address these concerns.
Commenters also suggested specific language that (1) only those
paraprofessionals and assistants who are appropriately trained and
supervised are allowed to assist in the provision of services under
Part B in accordance with State law, regulations, written policy, and
accepted standards of professional practice, and only assist in the
provision of services with the consent of their supervisors; (2) para-
professional and assistant services must be delivered under the direct,
ongoing and regular supervision of a qualified professional with
competency in the technique(s) employed by the paraprofessional or
assistant; (3) paraprofessionals and assistants may not develop,
modify, or provide services independent of or without such supervision,
and may report findings but not make diagnostic or treatment
recommendations to special education decision making teams; (4) the
roles, supervision and training of paraprofessionals and assistants
must be consistent with the professional standards of the different
areas in which they work; (5) paraprofessionals and assistants, at a
minimum, must receive organized in-service training under the direct,
ongoing and regular supervision of a qualified professional with
competency in the technique being employed by the paraprofessional or
assistant; and (6) the State must have information on file with the
Secretary that demonstrates that the State has laws, regulations, or
written policies related to the training, use, and supervision of
paraprofessionals and assistants.
Some commenters recommended that Sec. 300.136 be amended to expand
services that paraprofessionals and assistants could assist in
providing under Part B. Other commenters maintained that the use of
paraprofessionals and assistants to assist in the provision of some
special education and related services should be prohibited. For
example, some commenters recommended that the regulations be clarified
to specify that paraprofessionals may not assist in the provision of
mental health services, while other commenters recommended
clarification indicating that paraprofessionals and assistants could
assist in the provision of psychological services, including evaluation
and treatment services, only under the supervision of a school
psychologist.
Other commenters requested clarification regarding whether
paraprofessionals could ever be used in lieu of special education
teachers. A few commenters stated that in no case should medical
procedures be provided by untrained individuals, and requested
clarification to this effect.
A number of commenters recommended that parents must be notified
whenever paraprofessionals or assistants are assigned to assist in the
provision of services. Other commenters recommended that this type of
notice is necessary whenever students with disabilities receive
services from an individual who does not meet the highest requirement
applicable to their professions, and that parents should have the right
to challenge this issue through the IEP process.
Discussion: Section 300.136(f) tracks the statutory requirement in
section 612(a)(15)(B)(iii), which permits, but does not require, the
use of paraprofessionals and assistants who are appropriately trained
and supervised, in accordance with State law, regulations, or written
policy, to assist in the provision of special education and related
services under Part B. Since the statute affords a State the option of
using paraprofessionals and assistants to assist in the provision of
special education and related services to children with disabilities,
it would be inappropriate to regulate in a manner
[[Page 12562]]
that would either require or prohibit the use of paraprofessionals and
assistants under Part B.
The statute makes clear that the use of paraprofessionals and
assistants who are appropriately trained and supervised must be
contingent on State law, regulation, or written policy, giving States
the option of determining whether paraprofessionals and assistants can
be used to assist in the provision of special education and related
services under Part B, and, if so, to what extent their use would be
permissible. Therefore, there is no need to provide definitions of the
terms ``paraprofessionals'' and ``assistants'' in these regulations,
since States have the flexibility to determine the scope of their
responsibilities.
Section 300.382 of these regulations requires States to include in
their CSPD a plan for the inservice and preservice preparation of
professionals and paraprofessionals. Appropriate training and
supervision are prerequisites for use of paraprofessionals and
assistants under Part B, and determinations of what constitutes
``appropriate'' training and supervision are matters for each State to
decide, based on factors relevant to each profession or discipline.
Because these regulations do not specify any particular standard for
persons providing special education and related services, but instead
leave such determinations to States, there also is no need to specify
any particular standards for paraprofessionals and assistants or their
supervisors in these regulations.
No regulatory changes are necessary regarding information that a
State that uses paraprofessionals and assistants to assist in the
provision of special education and related services must have on file
with the Secretary, since this information already would be part of the
personnel standards portion of the State's Part B State plan. If a
State chose to adopt a policy regarding the use of paraprofessionals
and assistants, the State would be required to submit its policy to the
Department only if that policy constitutes a change from the
information contained in the State's prior year Part B State
submission, under section 612(c) of the Act.
In addition, there is no need to specify whether paraprofessionals
and assistants can assist in the provision of psychological services,
including mental health services, under these regulations, or to what
extent they can participate in the testing process, since State laws,
regulations, and written policies, not Part B requirements, would
govern these determinations. With respect to ``medical services,''
however, it should be noted that only those medical services that are
for diagnostic and evaluation purposes are eligible related services
under Part B. Another category of ``related services,'' ``school health
services,'' may be provided by a school nurse or other qualified person
in accordance with applicable State qualification standards. It is
critical that States that use paraprofessionals and assistants do so in
a manner that is consistent with the rights of children with
disabilities to FAPE under Part B. Since the Act provides that
paraprofessionals and assistants may assist in the provision of special
education and related services, their use as teachers would be
inconsistent with a State's duty to ensure that personnel necessary to
carry out the purposes of Part B are appropriately and adequately
prepared and trained.
Part B does not require that public agencies give parents
information on how paraprofessionals and assistants are assisting in
the provision of services to their children. However, public agencies
are encouraged to inform parents about whether paraprofessionals are
assisting in the provision of special education and related services to
their children, including the extent that these individuals are being
supervised by appropriately trained and qualified staff.
No clarification has been provided regarding which services are
being provided by individuals who do not meet the ``highest entry-level
requirements'' applicable to their profession. The Act's personnel
standards provisions and these regulations at Sec. 300.136(c) make it
permissible for States to use individuals who do not meet the highest
entry-level academic degree requirement applicable to their profession,
provided that the State is taking steps to upgrade all personnel in
that profession to appropriate professional requirements in the State
by a specified date in the future. IDEA allows State the discretion to
determine the ``specified date'' and does not prevent a State from
making changes to that date. Thus a State is not prohibited from
extending its timeline for retraining or hiring of personnel to meet
appropriate professional requirements in the State.
Changes: None.
Comment: A number of comments were received regarding
Sec. 300.136(g). These commenters requested definitions of ``most
qualified individuals available,'' ``good faith efforts,'' ``geographic
area,'' ``satisfactory progress,'' and ``shortages of personnel,'' or
the clarification of these terms.
Numerous commenters objected to allowing States that have upgraded
all personnel in a specific profession or discipline to appropriate
professional requirements in the State to use personnel who did not
meet those standards if they were experiencing personnel shortages.
These commenters regarded this provision as permitting these States to
waive applicable personnel standards. Some of these commenters
advocated not allowing States to have a policy that would extend the
three-year time frame for individual applicants who are hired under the
``waiver provision'' to become fully qualified. Other commenters
requested clarification to ensure that paragraph (g) not be applied on
a system-wide basis but instead be applied to individuals on a case-by-
case basis.
Other commenters believed that paragraph (g) and Note 2 must be
deleted because under no circumstances should States that have achieved
the goal of upgrading all personnel in the State to meet appropriate
professional requirements have the option of employing personnel, even
temporarily, who do not meet applicable State personnel standards.
Commenters requested specific clarification that 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.
While some commenters recommended that Note 2 either be retained or
incorporated into the regulations, many commenters believed that Note 2
should be deleted because it encourages protracted delays in attaining
the highest requirement in the State applicable to specific professions
or disciplines.
Discussion: Section 300.136(g) of the NPRM incorporates essentially
verbatim the new statutory provision at section 612(a)(15)(C) of the
Act. Section 300.136(g) affords States the necessary flexibility to
serve children with disabilities if instructional needs exceed
available personnel who meet appropriate State personnel qualification
standards, even though the State has satisfied the requirements of
paragraph (c) of this section for personnel in a specific profession or
discipline. However, a State's ability to permit its LEAs to utilize
this option is conditioned on a number of factors.
Under Sec. 300.136(g), States are given the option of adopting a
policy of allowing LEAs in the State, that have made a good faith
effort to recruit and hire appropriately and adequately
[[Page 12563]]
trained personnel, in a geographic area of the State where there is a
shortage of personnel that meet applicable State qualification
standards, of using the most qualified personnel available who are
making satisfactory progress toward completion of applicable course
work necessary to meet applicable State qualification standards within
a three-year period.
Therefore, in order for Sec. 300.136(g) to be invoked, the State
must have made good faith efforts to recruit and hire appropriately and
adequately trained personnel. However, before other personnel can be
utilized, there must be a shortage of qualified personnel as determined
by the State, in a geographic area as defined by the State, to meet
instructional needs. The personnel who are utilized under these
circumstances also must be making satisfactory progress toward
completion of applicable course work within a three-year period.
While a State's decision to invoke the policy under Sec. 300.136(g)
depends on a variety of State-specific factors, the statute does not
restrict the State's ability to invoke this policy if the conditions in
Sec. 300.136(g) are present. However, it is expected that the
circumstances in which the policy under paragraph (g) of this section
will be invoked will prove to be the exception rather than the rule.
The information provided by commenters does not provide a
sufficient basis for restricting to only one three-year period a
State's ability to invoke Sec. 300.136(g). Therefore, to avoid
confusion, and consistent with the determination explained in Note 2 to
this section in the NPRM, the portion of Note 2 that explains that this
section can be invoked even if a State has reached its established date
for a specific profession or discipline under paragraph (c) of this
section should be incorporated into the regulations. Also, the
clarification from Note 2 that a State that continues to experience
shortages of personnel meeting appropriate professional requirements in
the State must address those shortages in its comprehensive system of
personnel development should be incorporated into the regulations.
Changes: Paragraph (g) of this section of the NPRM has been
designated as paragraph (g)(1) of these regulations. New paragraphs
(g)(2) and (g)(3) have been added, and provide that (1) a State that
has met its established goal for a specific profession or discipline
under paragraph (c) of this section is not prohibited from invoking
paragraph (g)(1); and (2) each State must have a mechanism for serving
children with disabilities if instructional needs exceed available
personnel, and if a State continues to experience shortages of
qualified personnel, it must address those shortages in its
comprehensive system of personnel development.
Comment: Some commenters requested that clarification be provided
to ensure that personnel with disabilities were hired. One comment
requested that a new paragraph (h) be added to the regulations to
specify that States not utilize standards that ``may screen out or tend
to screen out individuals with disabilities.'' Some commenters
requested clarification regarding the applicability of the personnel
standards provisions to private school staff serving children with
disabilities parentally-placed in private schools, and recommended that
this be a part of the consultation process.
Other commenters recommended that these regulations require that
students who are deaf or hearing impaired receive appropriate
instruction in their native language, including sign language, and that
sign language interpreters meet particular qualification standards.
Discussion: For the most part, the issues raised by these
commenters have been addressed elsewhere in these regulations or
through other statutory requirements; therefore, no further
clarification has been provided in this section. If State standards
screen out individuals with disabilities from providing special
education and related services under these regulations, they could
violate Federal civil rights laws that prohibit discrimination on the
basis of disability.
In addition, as required by Section 427 of the General Education
Provisions Act (GEPA), each State must have on file with its Part B
application to the Secretary a description of the steps the State is
taking to ensure equitable access to, and participation in programs and
activities assisted with Part B funds and must have identified the
barriers to equitable participation and developed strategies to address
those barrier.
The Part B CSPD provisions require each State to develop a plan for
the in-service and preservice preparation of professionals and
paraprofessionals who work with children with disabilities under these
regulations. One of the strategies that must be included in this plan
in accordance with Sec. 300.382(h) is how a State will [r]ecruit,
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.''
Therefore, in meeting their obligations under Part B and GEPA,
States are required to take steps to ensure equitable access of
individuals with disabilities to their programs and must take steps to
remove barriers which prevent such access. It is expected that States
that determine through their CSPD that they have employed an
insufficient number of individuals with disabilities will identify and
remove barriers to the employment of individuals with disabilities in
the State. This will ensure that qualified individuals with
disabilities are recruited and hired to provide special education and
related services to children with disabilities under these regulations.
While sign language interpreters must be able to provide
appropriate instruction and services to children who are deaf or
hearing impaired, no clarification is necessary, since States must
establish and maintain standards for all personnel who are providers of
special education and related services, including sign language
interpreters. See discussion of Sec. 300.23 (qualified personnel) in
Subpart A of this Attachment. In addition, section 614(d)(3)(B)(iv) of
the Act requires the IEP team to consider the language and
communication needs of children who are deaf or hard of hearing. To
ensure that this occurs, Sec. 300.136 would require each State to
ensure that the necessary personnel are appropriately and adequately
prepared and trained.
The personnel standards provisions of these regulations are
applicable to persons providing services to children with disabilities
who are publicly placed in private schools and to persons providing
special education and related services to parentally-placed private
school children the LEA, after consultation with representatives of
private schools, has chosen to serve.
Changes: None.
Performance Goals and Indicators (Sec. 300.137)
Comment: Some commenters requested that the regulations be revised
to clarify the responsibility of a State to establish performance goals
and indicators for children with disabilities if the State has not
established performance goals and indicators for general education
students. They also requested clarification of States' responsibility
to report to the Secretary and the public regarding progress toward
achieving the performance goals.
Discussion: Further clarification is not required. As set forth in
Sec. 300.137(a),
[[Page 12564]]
each State is required to demonstrate that it has established
performance goals that are ``consistent, to the maximum extent
appropriate, with other goals standards for all children established by
the State.'' However, regardless of whether a State has established
goals for all children, it must establish goals for the performance of
children with disabilities, and must establish 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 (Sec. 300.137(a) and
(b)).
The regulation also specifies that each State report every two
years 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 Sec. 300.137(a). The requested revisions are not
necessary.
Changes: None.
Comment: Some commenters requested that the regulation be revised
to require that, prior to each State's reporting to the Secretary and
the public every two years, as required by Sec. 300.137(c), the State
conduct widely publicized forums at which students, parents, and
concerned citizens can comment on a draft report, and that the State
include the comments it receives as part of its final report to the
Secretary and the public. Other commenters requested that the
regulation be revised to require that each State establish its goals
for the performance of children with disabilities with the cooperation
and input of parents and children with disabilities, teachers, and
members of the community.
Discussion: The Act requires that each State report every two years
to the Secretary and the public on the progress of the State and of
children with disabilities in the State toward meeting the State's
performance goals, but neither requires nor prohibits States from
implementing procedures to allow the public the opportunity to comment
on draft reports. It is appropriate to leave the use of such procedures
to the discretion of the States, and no additional procedures regarding
the reports are needed.
In demonstrating eligibility under Part B, States are required to
submit information to the Department demonstrating that they meet the
requirements of this section of the regulations. Before submitting that
information to the Department, the States' proposal will be subjected
to public comment and involvement consistent with the public
participation provisions of Secs. 300.280-300.284. These provisions
include public notice and public hearings, and an opportunity for the
public to participate before that information is submitted to the
Department. The process applies to the initial submission as well as
any subsequent substantive provisions.
Changes: None.
Participation in assessments (Sec. 300.138)
Comment: A number of commenters raised concerns regarding the note
following Sec. 300.138, which states that it is assumed that only a
small percentage of children with disabilities will need alternative
assessments; some commenters requested that the language of the note be
incorporated into the regulation itself, while others requested that
the note be deleted, and further commenters requested clarification
regarding the meaning of 'small percentage' in the note and who would
enforce that requirement.
Other commenters asked that the regulation clarify that the IEP
team must make the determination that a child will participate in an
alternate assessment. Others asked that the regulation be revised to
include criteria or guidelines in the regulation for determining if an
alternate assessment can be used for a child, while others requested
that the regulations require that each State provide such guidance for
IEP teams. Some commenters said that the use of the term ``alternate
assessment'' in the regulation and the use of the term ``alternative
assessment'' in the note caused confusion, and asked that ``alternate
assessment'' be defined. Other commenters stated that costs of
alternate assessments would be prohibitive. Some commenters expressed
concerns regarding the use of accommodations. Some commenters were
concerned that the use of accommodations might affect test validity and
standardization, while others requested further guidance as to who has
the authority to determine whether a particular accommodation is
necessary and how that determination must be made. Some of the
commenters requested that the regulation specify that accommodations
should address students' specific needs and afford maximum
independence, while others said that a student's needs should be
accommodated by tools or assistive technology that he or she uses on a
daily basis or with which he or she is most familiar.
Other commenters asked that a note be added to reaffirm the State's
responsibility to ensure that children are provided the accommodations
they need so that they can participate in State and district-wide
assessments. Some commenters requested clarification as to whether
students should participate in assessments according to their
performance level or the grade they are in based upon their
chronological age. Some commenters requested clarification as to
whether participation in alternate assessments was not required until
July 1, 2000. A few commenters requested a note to state that
assessment practices appropriate for children in grades 4 and older
might not be appropriate for younger children.
Discussion: State and district-wide assessment programs are closely
aligned with State and local accountability-based reform and
restructuring initiatives. Therefore, it is important to allow the
flexibility needed for State and local school districts to
appropriately include disabled children in State and district-wide
assessment programs. Only minimum requirements are included in these
regulations for how public agencies provide for the participation of
children with disabilities in State and district-wide assessments. The
Department will be working with State and local education personnel,
parents, experts in the field of assessment and others interested in
the area of assessment to identify best practice that could serve as
the basis for a technical assistance document. As provided in
Sec. 300.347(a)(5), the IEP team must determine whether a child with a
disability will participate in a particular State or district-wide
assessment of student achievement, and if the child will not, the IEP
must include a statement of why that assessment is not appropriate for
the child and how the child will be assessed. If IEP teams properly
make individualized decisions about the participation of each child
with a disability in general State or district-wide assessments,
including the use of appropriate accommodations, and modifications in
administration (including individual modifications, as appropriate), it
should be necessary to use alternate assessments for a relatively small
percentage of children with disabilities. Consistent with the decision
to not include notes in these final regulations, the note is deleted.
Section 300.138 requires the State or LEAs, as appropriate, to
develop alternate assessments and guidelines for the participation of
children with disabilities in alternate assessments for those children
who cannot participate in State and district-wide assessment programs.
Alternate assessments need to be aligned with the general curriculum
standards set for all students and should
[[Page 12565]]
not be assumed appropriate only for those student with significant
cognitive impairments.
Section 300.347(a)(5) requires that the IEP team have the
responsibility and the authority to determine what, if any, individual
modifications in the administration of State or district-wide
assessments are needed in order for a particular child with a
disability to participate in the assessment. Section 300.138(a) should
be revised to reflect the requirement that modifications in
administration of State or district-wide assessments must be provided
if necessary to ensure the participation of children with disabilities
in those assessments. As part of each State's general supervision
responsibility under Sec. 300.600, it must ensure the appropriate use
of modifications in the administration of State and district-wide
assessments.
Test validity is an important variable and the Department has
invested discretionary funds in providing assistance to States
regarding appropriate modifications. The determination of what level of
an assessment is appropriate for a particular child is to be made by
the IEP team. It should be noted, however, that out of level testing
will be considered a modified administration of a test rather than an
alternative test and as such should be reported as performance at the
grade level at which the child is placed unless such reporting would be
statistically inappropriate.
Although SEAs and LEAs are not required by Sec. 300.138 to conduct
alternate assessments until July 1, 2000, each SEA and LEA is required
to ensure, beginning July 1, 1998, that, if a child will not
participate in the general assessment, his or her IEP documents how the
child will be assessed.
Changes: Paragraph (a) has been revised to acknowledge that, for
some children with disabilities, participation in State and district-
wide assessments may require appropriate modifications in
administration of the assessments as well as appropriate
accommodations. The note has been removed.
Reports Relating to Assessments (Sec. 300.139)
Comment: Several commenters noted that the requirement in
Sec. 300.139(b)(1) that each State's reports to the public include
``aggregated data that include the performance of children with
disabilities together with all other children'' exceeds the
requirements of the Act at section 612(a)(17)(B), and should be deleted
from the regulations. Other commenters requested clarification as to
whether States are required to aggregate data regarding children who
take alternate assessments with results for students who take the
general assessment. Other commenters requested that the regulations
require or suggest that States disaggregate assessment results by
disability category in reporting results to the public. A few
commenters requested that ``public agency'' be replaced with ``SEA'' in
the note following Sec. 300.139.
Discussion: In order to ensure that students with disabilities are
fully included in the accountability benefits of State and district-
wide assessments, it is important that the State include results for
children with disabilities whenever the State reports results for other
children. When a State reports data about State or district-wide
assessments at the district or school level for nondisabled children,
it also must do the same for children with disabilities. Section
300.139 requires that each State aggregate the results of children who
participate in alternate assessments with results for children who
participate in the general assessment, unless it would be inappropriate
to aggregate such scores.
Section 300.139 and the Act neither require nor prohibit States
from disaggregating assessment results by disability category in
reporting results to the public; this is a matter that should be left
to the discretion of each State. The text of Sec. 300.139 tracks the
statute, which addresses reporting requirements of the SEA.
The proposed note clarified that Sec. 300.139(b) requires a public
agency to report aggregated data that include children with
disabilities, but that 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).
Changes: Consistent with the decision to not include notes in the
final regulations, the note following Sec. 300.139 of the NPRM has been
removed.
Methods of ensuring services (Sec. 300.142)
Comment: Commenters emphasized that a child's right to FAPE should
not be adversely affected because the child is eligible for services
under Title XIX of the Social Security Act (Medicaid). For example,
commenters recommended adding clarification prohibiting a State
Medicaid agency or a Medicaid managed care organization from refusing
to pay for or provide a service for which it would otherwise be
responsible under Medicaid because the service is part of FAPE for a
child.
Some commenters recommended that Sec. 300.142(a)(4) be amended to
incorporate Senate language about use of Medicaid funds to finance the
cost of services provided in a school setting in accordance with a
child's IEP to ensure that Medicaid-funded services are provided in the
LRE and not in accordance with a medical model. However, some
commenters were concerned that Medicaid funding would only be available
for services for children with disabilities in school settings, and
that reimbursement for services for children in other settings, such as
the home, in accordance with their IEPs, would be denied.
Although many commenters acknowledged that Medicaid has been an
effective funding source for services in children's IEPs, clarification
was requested to ensure that there was not a delay in or denial of
services or alteration in types of services provided to children with
disabilities under these regulations, based on the rules of some other
provider or contractor.
Many commenters noted that some LEAs will delay initiating a
service until Medicaid payments are made, and requested that
Sec. 300.142(d) be amended to specify (1) a timeline to ensure that
services are not delayed until payment is received from another agency;
(2) a requirement that the LEA must provide the service and seek
reimbursement from the entity that is ultimately found to be
financially responsible; (3) a timeline for entering into interagency
agreements; and (4) a timeline for the prompt provision of
noneducational services specified in a child's IEP. Some commenters
recommended that clarification be provided to specify that State
interagency agreements are binding on contractors and managed care
organizations.
Other commenters recommended a specific enforcement mechanism to
make State IDEA grants contingent upon the existence and effective
operation of an interagency agreement that complies with IDEA.
Alternatively, the commenters' recommendation was that the regulations
be amended to provide a mechanism for school districts to seek legal
redress through the Department of Education or the judiciary against
any State agency which fails to act in accordance with an existing
legally-appropriate interagency agreement.
While many commenters found the explanation in Note 1 to this
section of the NPRM useful in understanding the intent of these
requirements and therefore recommended that the note either be retained
or incorporated into the regulation, other commenters
[[Page 12566]]
recommended that Note 1 be removed because it exceeded the statute.
Discussion: While the concerns expressed by these commenters are
very significant, most of them either already are addressed in this
section or elsewhere in these regulations. However, in light of the
general decision to remove notes from these final regulations, Note 1
should be removed as a note, but pertinent portions are incorporated in
this discussion. Regarding the concern that a child's entitlement to
FAPE not be construed as relieving a Medicaid provider or other public
insurer of its responsibility to pay for required services under these
regulations, Sec. 300.601 implements the statutory provision at section
612(e) of the Act, which provides that Part B does not permit a State
to reduce medical or other assistance or to alter eligibility under
Titles V and XIX of the Social Security Act with respect to the
provision of FAPE for children with disabilities in the State. Section
612(a)(12) of the Act, which is implemented by Sec. 300.142, reinforces
this important principle. This new statutory provision emphasizes the
obligation for interagency coordination between educational and
noneducational public agencies to ensure that all services necessary to
ensure FAPE are provided to children with disabilities, and that the
financial responsibility of the State Medicaid agency or other public
insurer shall precede that of the LEA or State agency responsible for
developing the child's IEP.
However, there is nothing in this provision that alters who is
eligible for, or covered services under Medicaid or other public
insurance programs. Therefore, the regulations should make clear that
the coverage of or service requirements for Title XIX or Title XXI of
the Social Security Act as defined in Federal statute, regulation or
policy or the coverage of or service requirements for any other public
insurance program are not affected by the IDEA regulation.
With regard to the concern that services paid for with Medicaid
funds must be provided in the LRE, and, if appropriate, at home,
payment for services cannot be conditioned solely on the setting in
which necessary services are provided. Regardless of whether services
are paid for with Part B or with Medicaid funds, all special
educational services for children with disabilities under Part B must
be individually-determined and provided in the least restrictive
setting in which the disabled child's IEP can be implemented.
In response to the suggestions of commenters, the concept explained
in the Senate and House Committee Reports on Pub. L. 105-17 which had
been incorporated into Note 1 to this section of the NPRM, should be
added to paragraph (b)(1) of these regulations to emphasize that health
services provided to children with disabilities who are Medicaid-
eligible and meet the standards applicable to Medicaid, may not be
disqualified from Medicaid reimbursement because they are services
provided in a school context in accordance with a child's IEP. However,
if a public agency is billing a State Medicaid agency or other public
insurance program for services provided under this part, the public
agency must ensure that the services and the personnel providing those
services meet applicable requirements under statute, regulation or
policy applying to that other program.
Similarly, if the IEP team determines that a child needs to receive
a particular service at home in order to receive FAPE, that service
would not be disqualified from Medicaid reimbursement under the terms
of these regulations, and States must address such concerns in the
context of their interagency agreements under the terms of paragraph
(a) of this section.
In response to numerous comments requesting clarification on the
issue of timely delivery of services paid for by noneducational public
agencies, it is particularly important to ensure that there are no
undue delays in the provision of required services due to the failure
of a noneducational public agency to reimburse the educational public
agency for required services for which the noneducational public agency
is responsible. Such delays could effectively nullify the requirements
for interagency coordination in section 612(a)(12) of the Act.
Although paragraph (a)(4) of this section already includes a
requirement that agencies have procedures that promote the
coordination, timely, and appropriate delivery of services under these
regulations, in response to concerns of commenters, the concept from
the language in the Senate and House Committee Reports on Pub. L. 105-
17, which is restated in Note 1 to this section of the NPRM, is
important to clarify understanding of these final regulations.
Paragraph (b)(2) of this section should be revised to clarify that the
provision of services under this section must be provided in a timely
manner.
No specific timelines have been included in these regulations.
However, States are required to take the necessary steps to enter into
appropriate interagency agreements between educational and
noneducational public agencies, including ensuring the prompt
resolution of interagency disputes. Effective interagency coordination
should facilitate the timely delivery of special educational services
as well as minimize any undue delays in the delivery of such services
financed by noneducational public agencies.
Despite suggestions of commenters, no provision has been added
regarding the responsibilities of contractors, since the noneducational
public agency, not the contractor, is the party to the agreement.
No enforcement mechanism has been specified in these regulations.
Under paragraph (a) of this section, the SEA must develop a mechanism
for resolving disputes between respective agencies regarding financial
responsibility for required services, and must ensure that all services
needed to ensure the provision of FAPE are provided, including during
the pendency of any interagency dispute.
Because a mechanism for interagency coordination is a condition of
eligibility for assistance under Part B, a State that fails to develop
an effective mechanism for resolving interagency disputes and ensuring
the provision of required services during the pendency of such disputes
could jeopardize its continued eligibility for IDEA funding.
Further, under section 613(a)(1) of the Act, in order for an LEA to
be eligible for Part B funds from the State for any fiscal year, the
LEA must have in effect policies, procedures, and programs that are
consistent with the State policies and procedures established under
section 612 of the Act. This would include the requirement in section
612(a)(12) relating to methods of ensuring services.
Changes: Section 300.142 has been amended by adding language to
paragraph (b)(1) to specify that a noneducational public agency may not
disqualify an eligible service for Medicaid reimbursement because that
service is provided in an educational context. Paragraph (b)(2) has
been amended to indicate that services must be provided in a timely
manner, by the LEA (or State agency responsible for developing the
child's IEP). Note 1 to this section of the NPRM has been removed. A
new paragraph (i) has been added to this section to clarify that
nothing in this part should be construed to alter the requirements
imposed on a State Medicaid agency, or any other agency administering a
public insurance program under Federal statute, regulations or policy
for Title XIX or
[[Page 12567]]
Title XXI of the Social Security Act, or any other public insurance
program.
Comment: Commenters recommended that a statement be added to
Sec. 300.142(a)(4) to specify that services financed as a result of
interagency coordination are to supplement, not supplant, services
provided by the LEA. Other commenters asked that Sec. 300.142(a)(4) be
amended to specify that school-employed personnel must be the first
resource for providing related services. In addition, commenters also
recommended that clarification be added to specify that the use of
contract personnel or other arrangements should not supersede or
supplant the use of school based personnel, with very limited
exceptions.
Discussion: The requirement in section 612(a)(12)(A) of the Act,
also reflected in paragraph (a)(1) of this section (which specifies
that the financial responsibility of the State Medicaid agency or other
public insurer of children with disabilities must precede that of the
LEA or State agency responsible for the provision of FAPE) should not
be construed to mean that Medicaid-funded services are supplemental to
the basic services provided under these regulations. Regardless of the
source of payment, the public agency responsible for educating the
disabled child still must ensure that the child receives all required
services at no cost to the parents. Therefore, if Medicaid funds only a
portion of required services based on service caps, the public agency
responsible for the provision of FAPE must ensure that any remaining
necessary services are provided at no cost to the parents. However, a
public agency may not make decisions regarding the provision of
required services to children with disabilities under these regulations
based solely on availability of Medicaid funding. To the contrary, if a
public agency determines that particular services are necessary to
ensure the provision of FAPE to children with disabilities, those
services must be provided at no cost to the parents, regardless of
whether Medicaid funds the service.
No clarification has been provided regarding selection of personnel
to provide required services under these regulations. In ensuring the
provision of FAPE, public agencies may use any personnel that meet
applicable State standards in accordance with Secs. 300.136 and 300.23
of these regulations. However, as noted above, if a public insurance
program is billed for services provided under this part, those services
must meet the requirements of that program, including personnel
standards that apply to that program, in addition to conforming with
the requirements of this part. Once determinations about personnel
qualifications have been made, Part B does not govern the manner in
which necessary personnel are selected to meet instructional needs
under these regulations.
Changes: None.
Comment: Commenters recommended clarification to specify that all
services must be free from direct and indirect costs to parents. A
principal concern of commenters was that even in circumstances where it
is highly probable that future financial costs will result, parents
feel constrained to permit public agencies to access their insurance
because of the fear of losing necessary services for their disabled
children.
Many commenters believe that there is always a cost associated with
using private insurance, i.e., exhaustion of lifetime caps, decreased
benefits, increased co-pays and costs, risk of future uninsurability
with another insurance carrier, and possible termination of health
insurance. These commenters recommended that a new paragraph be added
to this section, which would require public agencies to inform parents
that voluntary use of their private insurance could entail these risks,
that parents have no obligation to permit access to their insurance
payments, and have the right to say no. These commenters also
recommended that Note 2 to this section of the NPRM be deleted.
Some commenters also objected that Sec. 300.142(e) does not support
the concept of obtaining parental permission for use of public
insurance, and recommended that the regulation specify that parents
must give informed consent to use of their public or private insurance
which (1) must be voluntary on the part of parents, (2) renewed at
least annually, (3) can be revoked at any time, and (4) must include a
written description of ``potential financial costs'' associated with
using their insurance. Other commenters agreed with proposed paragraph
(e)(1) and Note 2 and urged that they be retained in the final
regulations.
Discussion: Proposed paragraph (e)(1) of this section of the NPRM
incorporated the interpretation of the requirements of Part B and
Section 504 contained in the Notice of Interpretation (Notice) on use
of parents' insurance proceeds, published on December 30, 1980 (45 FR
86390). Under the interpretation in the Notice, public agencies may not
access private insurance if parents would incur a financial cost, and
use of parent's insurance proceeds, if parents would incur a financial
cost, must be voluntary on the part of the parent.
In light of the concerns of numerous commenters that the use of
private insurance always involves a current or future financial cost to
the parents, and the Department's experience in administering Part B,
the regulations regarding use of private insurance should be revised.
As numerous commenters have indicated, parents who permit use of their
private insurance often experience unanticipated financial
consequences. These parents often act without full knowledge of the
future impact of their decision. Public agencies should be permitted to
access a parent's private insurance proceeds only if the parent
provides informed consent to use.
Consistent with the definition of ``consent'' in these regulations,
such consent must fully inform parents that they could incur financial
consequences from the use of their private insurance to pay for
services that the school district is required to provide under the
IDEA, such as surpassing a cap on benefits, which could leave them
uninsured for subsequent services, and that the parents should check
with their private insurance provider so that they understand the
foreseeable future financial costs to themselves before they give
consent. This consent should be obtained each time a public agency
attempts to access private insurance, and be voluntary on the part of
the parents.
In addition, parents need to be informed that their refusal to
permit a public agency to access their private insurance does not
relieve the public agency of its responsibility to ensure that all
required services are provided at no cost to the parents. However, the
suggestion of commenters that parents be informed that they have the
right to refuse use of their private insurance because of future risks
of financial consequences has not been adopted because it is
unnecessary, in light of the new requirement that public agencies
obtain parental consent to use a parent's private insurance.
Changes: A new paragraph (f) has been added to clarify the
circumstances under which public agencies may access parent's private
insurance to pay for required services under these regulations. Note 2
to this section of the NPRM has been removed.
Comment: The majority of commenters urged regulations on the use of
public insurance that would parallel those governing use of private
insurance. Commenters recommended that regulations clarify that the
same protections available to parents when
[[Page 12568]]
public agencies access private insurance are available to parents when
public agencies access public insurance. These commenters also
disagreed with the statement on page 55036 of the preamble to the NPRM
that suggested that regulation on this issue was not necessary because
there is no financial loss to parents under current public assistance
programs such as Medicaid.
Examples of financial costs cited by commenters resulting from
Medicaid use were (1) limitation or decrease in public insurance
benefits available to children with disabilities and their families for
non-school needs; (2) a requirement that private insurance initially be
used before Medicaid funds are made available; (3) limitations on
amounts of services that can be reimbursed with Medicaid funds; and (4)
premiums or co-pays resulting from use of Medicaid funding.
Commenters also requested that the definition of ``financial cost''
be expanded to include costs such as a risk of losing eligibility for
home and community-based waivers based upon aggregate health-related
expenditure, and costs associated with Medicaid buy-ins. These
commenters also recommended that the regulations clarify that parental
consent must be obtained before a public agency can access Medicaid or
other public insurance benefits available to the parent.
Some commenters urged the elimination of definitions or terms not
included in the statute, such as the definition of financial cost.
Other commenters recommended that changes not be made and agreed with
the statement in the preamble to the NPRM that there is no financial
cost to parents who access Medicaid or other public insurance benefits.
These commenters believed that the regulation should state that
parental permission need not be obtained before accessing public
insurance. Some of these commenters also recommended further
observation and study of current State practices to ensure that the
regulations do not have an adverse impact on currently existing and
effective financial systems. These commenters also recommended
additional guidance to allow States maximum flexibility to utilize all
available resources.
Some commenters recommended that Note 3 be retained as a note or
that pertinent portions be incorporated into the regulation, while
others requested that Note 3 be deleted.
Discussion: As numerous commenters pointed out, the statutory basis
of the 1980 Notice of Interpretation governing use of private insurance
proceeds also applies to children with disabilities who have public
insurance. In both instances services under Part B must be at no cost
to parents. In view of the comments received, it appears that the
statement contained on page 55036 of the preamble to the NPRM, which
indicates that there is no risk of financial cost to parents if public
agencies use Medicaid or other Federal, State or local public insurance
programs, is not entirely accurate.
While it is essential that public agencies have the ability to
access all available public sources of support to pay for required
services under these regulations, services must be provided at no cost
to parents. However, in the majority of cases, use of Federal, State or
local public insurance programs by a public educational agency to
provide or pay for a service to a child will not result in a current or
foreseeable future cost to the family or child. For example, under the
Early Periodic Screening, Diagnosis and Treatment (EPSDT) program of
Medicaid, potentially available benefits are only limited based on what
the Medicaid agency determines to be medically necessary for the child
and are not otherwise limited or capped. Currently, approximately 90
percent of the school-aged children who are eligible for public
insurance programs are eligible for services under the EPSDT program.
Where there is no cost to the family or the child, public educational
agencies are encouraged to use the public insurance benefits to the
extent possible. It also should be noted that a public educational
agency is required to provide a service that is needed by a child and
has been included on his or her IEP but that is not considered
medically necessary under EPSDT or other public insurance program. As
is the case for any other service required by a child's IEP, if a
service on a child's IEP is provided by a public insurance program at a
site that is separate from the child's school, the public educational
agency is responsible for ensuring that the transportation is at no
cost to the child or family.
There are some situations, however, that should be addressed by the
regulation to ensure that use of public insurance does not result to a
cost to the child or family. In some public insurance programs,
families are required to pay premiums or co-pay amounts in order to be
covered by or use the public insurance. Parents of children with
disabilities under Part B should not be required to assume those costs
so that a school district can use the child's public insurance to cover
services required under Part B. While these regulations do not affect
the requirement under Medicaid that the State Medicaid agency pursue
liable third party payers such as private insurance providers, for the
reportedly relatively small number of children and families who are
covered by both private and public insurance, under IDEA parents may
not be required to assume costs incurred through use of private
insurance so that the school can get reimbursement from the public
insurer for services in the child's IEP. Under IDEA, if a Medicaid-
enrolled child also is covered by private insurance, the public agency
must choose one of two options--either obtain the parent's consent to
use the private insurance, or not use Medicaid to provide the service.
One way a public agency might be able to obtain that consent would be
to offer to cover the costs that would normally, under Medicaid, be
assessed against the private insurer. Similarly, if under Medicaid a
parent or family normally would incur an out-of-pocket expense such as
a co-pay or deductible, a public agency may not require parents to
incur that cost in order for their child to receive services required
under the IDEA. In such a case, again, the public agency must choose
one of two options--either cover the out-of-pocket expense so that the
parent does not incur a cost, or not use Medicaid to provide the
service. The regulations should make clear that a public agency is able
to use Part B funds to pay the cost that under Medicaid requirements
would otherwise be covered by a third party payer.
Public insurance limits of the amounts of services that will be
covered based on the public insurer's determination of what is
medically necessary for the child are not prohibited by Part B.
However, a public educational agency's use of a child's benefits under
a public insurance program should not result in the family having to
pay for services that are required for the child outside of the school
day and that could be covered by the public insurance program. For
example, if a public insurer were to determine that eight hours of
nursing services were medically necessary for a child whose medical
devices needed constant trained supervision, a school district's use of
six of those hours during the school day would mean that family would
have to assume the financial responsibility for those services
throughout the night. In such a case, the family would be incurring a
cost due to the school district's use of the public insurance benefit.
Risk of loss
[[Page 12569]]
of eligibility for home and community-based waivers, based in aggregate
health-related expenditures could also constitute a cost to a family
for those few children with very extensive health related needs.
A public agency may not require a parent to sign up for Medicaid or
other public insurance benefits as a condition for the child's receipt
of FAPE under Part B. A child's entitlement to FAPE under Part B exists
whether or not a parent refuses to consent to the use of their Medicaid
or public insurance benefits or is unwilling to sign up for Medicaid or
other public insurance benefits. Children with disabilities are
entitled to services under Part B, regardless of parents' personal
choices to access Medicaid or other public insurance benefits.
Although section 612(a)(12) of the Act makes clear States'
obligations to ensure that available public sources of support precede
responsibilities of public agencies under these regulations, Medicaid
or other public insurance benefits cannot be considered available
public sources of support when parents decline to access those public
benefits. However, there is nothing in these regulations that would
prohibit a public agency from requesting that a parent sign up for
Medicaid or other public insurance benefits. Furthermore, a public
agency would not be precluded from using a child's public insurance,
even if parents incur a financial cost, so long as the public agency's
use of a child's public insurance is voluntary on the part of the
parent.
In order to ensure that children with disabilities are afforded a
free appropriate public education at no cost to their parents, the
regulation should be amended to address children with disabilities who
are covered by public insurance by specifying that a public agency may
use Medicaid or other public insurance benefits programs in which a
child participates with certain exceptions. Those exceptions would be
that a public agency may not require parents to sign up for public
insurance in order for their child to receive FAPE under Part B of the
Act; require parents to incur out-of-pocket expenses related to filing
a public insurance claim for Part B services; and may not use the
public insurance if the use would decrease coverage or benefits,
increase premiums, lead to discontinuation of insurance, result in the
family paying for services that otherwise would be covered by the
public insurance and that are required by the child outside of the time
the child is in school, or risk loss of eligibility for home and
community-based waivers. However, unlike the rule related to private
insurance, Part B would not require the public agency to obtain parent
consent each time it uses the public insurance. Under the terms of the
public insurance program, consent may be required before a public
educational agency may use a child or family's public insurance
benefits.
In light of the importance of the issues addressed in Note 3 to
this section of the NPRM, Note 3 should be removed as a note, and a new
paragraph (g), regarding use of Part B funds, should be added to this
regulation. This paragraph would permit use of Part B funds for (1) the
cost of those required services under these regulations, if parents
refuse consent to use public or private insurance; and (2) the costs of
accessing parent's insurance, such as paying deductible or co-pay
amounts.
Changes: Paragraph (e) has been amended to address circumstances
under which a public agency can access a parent's Medicaid or other
public insurance benefits to pay for required services under these
regulations. The definition of financial costs in the NPRM has been
deleted. Note 3 to this section of the NPRM has been removed, and the
substance of Note 3 has been incorporated into a new paragraph (g) of
this section.
Comment: Several commenters were concerned that Sec. 300.142(f) of
the NPRM makes it permissible for public agencies not to use funds
reimbursed from another agency to provide special education and related
services to children with disabilities. Suggestions made by commenters
were that this paragraph either be deleted or changed to require that
these reimbursed funds must be used in this program.
Commenters recommended that Note 4 be deleted since it gives public
agencies the option of dedicating these funds to the Part B program
only if they choose to do so. These commenters believe that this change
is necessary for this regulation to be consistent with the purpose of
section 612(a)(12) of the Act, which places financial responsibility
for the provision of special education and related services on agencies
other than schools. Other commenters recommended that Note 4 be deleted
because it is redundant of Sec. 300.3, which provides that the
regulations in 34 CFR part 80 apply to this program.
Discussion: In response to concerns of commenters, Note 4 should be
removed, but pertinent portions of Note 4 should be incorporated into
the text of the final regulations. This section should clarify that, if
a public agency receives funds from public or private insurance for
services under these regulations, the public agency is not required to
return those funds to the Department or to dedicate those funds for use
in the Part B program, which is how program income must be used,
although a public agency retains the option of using those funds in
this program if it chooses to do so. Reimbursements are similar to
refunds, credits, and discounts which are specifically excluded from
program income in 34 CFR 80.25(a).
In addition, the regulations should clarify that funds expended by
a public agency from reimbursements of Federal funds will not be
considered State or local funds for purposes of Secs. 300.154 and
300.231. If Federal reimbursements were considered State and local
funds for purposes of the maintenance of effort provisions in
Secs. 300.154 and 300.231 of these regulations, SEAs and LEAs would
experience an artificial increase in their base year amounts and would
then be required to maintain a higher, overstated level of fiscal
effort in the succeeding fiscal year.
Changes: Section 300.142(f) has been redesignated as
Sec. 300.142(h) and revised to clarify that (1) A public agency that
receives proceeds from public or private insurance for services under
these regulations is not required to return those funds to the
Department or to dedicate those funds to this program because they will
not be treated as program income under 34 CFR 80.25; and (2) funds
expended by a public agency from reimbursements of Federal funds will
not be considered State or local funds for purposes of Secs. 300.154
and 300.231 of these regulations. Note 4 to this section of the NPRM
has been removed.
Recovery of Funds for Misclassified Children (Sec. 300.145)
Comment: Some commenters requested that the regulation be revised
to provide a State the opportunity for a hearing before a student is
declared ineligible for Part B funding.
Discussion: Section 300.145 requires that each State have on file
with the Secretary policies and procedures that ensure that the State
seeks to recover any funds it provided to a public agency 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. There is no need to revise the regulation to provide for
administrative review of a decision by this Department that Part B
funds should be recovered from a State because of an erroneous child
count. The Department uses the administrative appeal procedures set out
at 34 CFR Part 81 in recovering funds because of an erroneous child
[[Page 12570]]
count for cases where the Department is attempting to recover grant
funds, including Part B funds.
Changes: None.
Suspension and Expulsion Rates (Sec. 300.146)
Comment: Some commenters requested the regulation be revised to
permit States to use sampling procedures to obtain the data that they
will examine pursuant to Sec. 300.146(a).
Discussion: Obtaining complete and accurate data on suspension and
expulsion is too critical to be collected on a sampling basis.
Changes: None.
Comment: Some commenters requested that Sec. 300.146(b) be revised
to require that a State review and if appropriate revise its
comprehensive system of personnel development, if the State finds that
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities among LEAs in
the State or compared to the rates for nondisabled children within
LEAs.
Discussion: Section 300.146(b) requires that, if an SEA finds that
significant discrepancies are occurring in the rate of long-term
suspensions and expulsions of children with disabilities among LEAs in
the State or compared to the rates for nondisabled children within
LEAs, the SEA must, if appropriate, revise (or require 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.
Among the policies that a State would review and if necessary
revise are its CSPD policies and procedures related to ensuring that
personnel are adequately prepared to meet their responsibilities under
the Act. Further, Sec. 300.382 specifically requires each State to
develop strategies 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; and these
strategies must include how 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''
(Sec. 300.382(f)). Further guidance is not needed.
Changes: None.
Public Participation (Sec. 300.148)
Comment: None.
Discussion: Section 300.148 requires each State to 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.
In the past, a number of States have indicated that certain State
special education policies that are also required under this part had
previously been subjected to public review and comment under the
State's own public participation process, and the States have expressed
concern about having to repeat the process for those policies under
Secs. 300.280-300.284.
The need for an effective public participation process is critical
to the adoption and implementation of policies and procedures that
comply with the requirements under this part. However, if a State, in
adopting State special education policies had previously submitted
those policies through a public participation process that is
comparable to and consistent with the requirements of Secs. 300.280-
300.284, it would be unnecessary and burdensome to require the State to
repeat the process.
Therefore, a provision would be added to Sec. 300.148 to clarify
that a State will be considered to be in compliance with this provision
if the State has subjected the policy or procedure to a public review
and comment process that is required by the State for other purposes
and that State public participation process with respect to factors
such as the number of public hearings, content of the notice of
hearings, and length of the comment period, is comparable to and
consistent with the requirements of Secs. 300.280-300.284.
Changes: Section 300.148 has been amended to include the provision
described in the above discussion.
Prohibition Against Commingling (Sec. 300.152)
Comment: None.
Discussion: The proposed note clarified that the assurance required
by Sec. 300.152 is satisfied by the use of a separate accounting system
that includes an audit trail of the expenditure of the Part B funds and
that separate bank accounts are not required, and referred the reader
to 34 CFR Sec. 76.702 in EDGAR, regarding Fiscal control and fund
accounting procedures. Because this information provides useful
guidance to States, it should be incorporated into the regulations.
Changes: The substance of the note is incorporated into the text of
the regulation.
Maintenance of State Financial Support (Sec. 300.154)
Comment: None.
Discussion: States should be able to demonstrate that they have not
reduced the amount of State financial support for special education and
related services for children with disabilities, whether made directly
available for those services or otherwise made available in recognition
of the excess costs of educating children with disabilities on either a
total or per child basis. A number of States, for example, have State
funding formulas that are based on enrollment which could result in a
decrease in the total amount of State financial support if enrollment
declines.
Changes: Paragraph (a) of this section has been revised to clarify
that either a total or per child level of State financial support is
acceptable.
Annual Description of Use of Part B Funds (Sec. 300.156)
Comment: Some commenters requested that the regulation be made
consistent with the statutory provision at section 611(f)(5) of the Act
by deleting Sec. 300.156(b).
Discussion: It is reasonable and appropriate to permit a State, if
the information which it would submit pursuant to Sec. 300.156(a) for a
given fiscal year is the same as the information that it submitted for
the prior fiscal year, to submit a letter to that effect rather than
resubmitting information that it has previously submitted.
Changes: None.
Excess Cost Requirement (Sec. 300.184)
Comment: Some commenters asked that the regulation be revised to
require regular financial audits to ensure compliance with the excess
cost requirements.
Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that LEAs comply with
all requirements of Part B, including the requirements of Sec. 300.184
regarding excess cost. Each SEA may meet this requirement through a
variety of methods, including monitoring and financial audits.
Changes: None.
[[Page 12571]]
Meeting the Excess Cost Requirement (Sec. 300.185)
Comment: None.
Discussion: The proposed note clarified the Department's
longstanding position that: (1) 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, ensuring 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; (2) excess costs are those costs of special education and related
services that exceed the minimum amount; (3) 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; and (4) Part B
funds can then be used to pay for these additional costs. However,
several commenters requested that the substance of all Notes be
incorporated into the text of the regulations or the Notes deleted.
Changes: The note has been deleted.
Requirements for Establishing Eligibility (Sec. 300.192)
Comment: Section 300.192(c) requires that, ``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.'' Some
commenters requested that the regulation be revised to emphasize the
appropriateness of children's educational programs as strongly as
placement in the least restrictive environment.
Discussion: Section 300.192(c) clarifies that notwithstanding
whether an LEA establishes Part B eligibility as a single LEA or
jointly with other LEAs, it must ensure compliance with the LRE
requirements of the Act. This provision does not in any way diminish an
LEA's responsibility to ensure that FAPE is made available to all
eligible children with disabilities.
Changes: None.
LEA and State Agency Compliance (Sec. 300.197)
Comment: Some commenters requested that the regulations be revised
to require that each SEA conduct sufficient monitoring activities in
each LEA and State agency, at least once every three years, to enable
the SEA to make findings regarding the extent to which the agency is in
compliance. Other commenters requested that Sec. 300.197(a) be revised
to reduce or cease to provide further payments under Part B to an LEA
or State agency if SEA finds that the agency is engaging in a pattern
of noncompliance or has failed promptly to remedy any individual
instance of noncompliance.
Section 300.197(c) requires that an SEA 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 in carrying out its
functions under Sec. 300.197. Some commenters requested that the
regulation be revised to require that the SEA also consider adverse
decisions on complaints filed under Secs. 300.660-300.662.
Discussion: Each SEA, as part of its general supervision
responsibility under Sec. 300.600, must ensure that all public agencies
meet the educational standards of the SEA, including the requirements
of Part B; and the General Education Provisions Act requires that each
SEA use effective monitoring methods to identify and correct
noncompliance with Part B requirements. In implementing this
requirement, each SEA must determine: (1) the frequency with which it
must monitor each of the public agencies in the State in order to
ensure compliance; and (2) whether a single act or pattern of
noncompliance demonstrates substantial noncompliance necessitating the
SEA to pursue financial sanctions.
Unlike hearings that are resolved by impartial due process hearing
officers who are not SEA employees, all complaints under the State
complaint procedures alleging a violation of Part B are resolved
directly by the SEA, which must also ensure correction of any
violations it identifies in response to such complaints. Therefore, the
SEA will, as part of its general supervision responsibilities, consider
any adverse complaint decisions in meeting its responsibilities under
Sec. 300.197, and the requested revision is not necessary.
Changes: None.
Maintenance of Effort (Sec. 300.231)
Comment: Some commenters expressed concern that the provision on
local maintenance of effort (MOE) would mean that even in years when
State legislatures increased State appropriations to offset financial
expenditures of LEAs, those funds could not be included in making
determinations as to whether the maintenance of effort provision had
been met.
Discussion: The statutory LEA-level maintenance of effort provision
requires that LEAs do not use the funds they are awarded under the IDEA
to reduce the level of expenditures that they make from local funds
below the level of those expenditures for the preceding year (except as
provided in Secs. 300.232 and 300.233). The statutory provision
replaces a prior regulatory provision that had required LEAs to
maintain the same total or per capita expenditures from State and local
funds as in prior years, which was viewed as financially burdensome by
LEAs when they were required, because of this prior regulatory
provision, to replace out of local funds any amount by which a State
reduced the amount of State funds going to an LEA.
Therefore, in recognition of this change, the regulation would
allow a comparison of local funding in the grant year to local funding
in a prior year. If a State assumes more responsibility for funding
these services, such as when a State increases the State share of
funding for special education to reduce the fiscal burden on local
government, an LEA may not need to continue to put the same amount of
local funds toward expenditures for special education and related
services in order to demonstrate that it is not using IDEA funds to
replace prior expenditures from local funds.
On the other hand, an LEA should not be able to replace local funds
with State funds when the combination of local and State funding is not
at least equal to a base amount from the same sources, as this would
result in reductions in expenditures not contemplated by the statute.
Since those Federal funds for which accountability is not required to a
Federal or State agency are expended at the discretion of an LEA, they
may be included in computations of local funds budgeted and expended
for special education and related services for children with
disabilities.
In determining whether an LEA could receive a subgrant in any year,
an SEA should compare the amount of funds from appropriate sources
budgeted for the grant year to the amount actually expended from those
sources in the most recent fiscal year for which data are available.
Reductions in the amount budgeted would be permissible for the
conditions described in Secs. 300.232 and 300.233, if applicable. An
LEA that did not expend in a grant year from those sources at least as
much as it had in the year on which the maintenance of effort
comparison for that year is based, would be liable in an audit for
repayment of the amount by which it failed to expend to equal the prior
year's expenditures,
[[Page 12572]]
up to the total amount of the LEA's grant.
Changes: A new paragraph has been added to clarify the maintenance
of effort provision.
Exception to Maintenance of effort (Sec. 300.232)
Comment: Some commenters requested that the regulation be revised
to specifically require that lower-salaried staff who replace special
education and related services personnel, who depart voluntarily or for
just cause, meet entry-level academic degree requirements that are
based on the highest requirements in the State for the relevant
profession or discipline. Other commenters requested retention of the
provision in Sec. 300.233(a) that an LEA may reduce its expenditures
from one year to the next if the reduction is attributable to the
voluntary departure, by retirement or otherwise, or departure for just
cause, of special education or related services personnel, but that the
language specifying that these personnel must be replaced by qualified,
lower-salaried staff and the note following this regulation be deleted.
Discussion: The requirements of Sec. 300.136 regarding personnel
standards apply to personnel who replace special education and related
services personnel, who depart voluntarily or for just cause. It is
important to make clear in the regulation that all staff providing
special education and related services must be qualified.
The Senate and House committee reports on Pub. L. 105-17, with
respect to the voluntary departure of special education personnel
described in Sec. 300.232(a), clarify 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 sets out guidelines under which this
exception may be invoked by an LEA. These guidelines (which provide
that 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)
are important in the implementation of this section and, therefore,
should be added to the regulation. (S. Rep. No. 105-17, p. 16, H. R.
Rep. No. 105-95, p. 96 (1997)).
Changes: Paragraph (a) has been amended to include the substance of
the note, consistent with the above discussion, and the note has been
removed.
Comment: Some commenters requested that Sec. 300.232(c)(3) be
revised to specify that an LEA may reduce its expenditures from one
year to the next if the reduction is attributable to the termination of
the LEA's obligation to provide a program of special education to a
child with a disability that is an exceptionally costly program, as
determined by the SEA, because the child no longer needs the program of
special education, as determined in accordance with the IEP
requirements at Secs. 300.346 and 300.347.
Discussion: Because any change in the special education and related
services provided to a child with a disability must be made in
accordance with the IEP requirements, the requested revision is not
necessary. The circumstances under which an LEA may reduce effort
because it no longer needs to provide an exceptionally costly program
are addressed by the regulations at Sec. 300.232(c).
Changes: None.
Comment: Some commenters requested that the regulation be revised
to require an LEA to submit to the SEA an assurance that all students
with disabilities in the LEA are receiving a free appropriate public
education, before the LEA would be permitted to reduce its
expenditures.
Discussion: As part of its general supervision responsibility under
Sec. 300.600, each SEA is required to ensure that all public agencies
in the State are complying with the requirement that they make FAPE
available to all eligible children in their respective jurisdictions.
Therefore, the requested revision is not necessary.
Changes: None.
Schoolwide Programs Under Title 1 of the ESEA (Sec. 300.234)
Comment: A commenter requested that, in Sec. 300.234(b), the
reference to Sec. 300.230(a) be changed to also include Sec. 300.230(b)
or Sec. 300.231(a). Another commenter asked if an LEA can use its State
and local special education funds in a schoolwide program without
accounting for expenditures of those funds for special education and
related services, and added that if such use is allowable, could the
State and local funds be considered in the LEA's maintenance of effort
calculation.
Discussion: The reference in Sec. 300.234 to Sec. 300.230(a) in the
NPRM should be changed to Sec. 300.230(b). If Part B funds are used in
accordance with Sec. 300.234, the funds would not be limited to the
provision of special education and related services. They could also be
used for other school-wide program activities. However, children with
disabilities in school-wide programs must still receive special
education and related services in accordance with properly developed
IEPs and must still be afforded all the rights and services guaranteed
under the IDEA.
The use of IDEA funds in a school-wide program does not change the
LEA's obligation to meet the maintenance of effort requirement in
Sec. 300.231.
Consistent with the general decision regarding the disposition of
notes, the note following Sec. 300.234 would be removed. However, the
note includes important guidance related to ensuring that children with
disabilities in schoolwide program schools still receive services in
accordance with a properly developed IEP, and still be afforded all of
the rights and services guaranteed to children with disabilities under
the IDEA. Therefore, this guidance should be added to the text of the
regulation as a specific provision.
It should be pointed out that the use of funds under Part B of the
Act in accordance with Sec. 300.234 is beneficial to children with
disabilities, and, contrary to informal concerns that have been raised,
the use of the Part B funds in schoolwide programs does not deplete
resources for children with disabilities. Rather, it helps to ensure
effective inclusion of those children into the regular education
environment with nondisabled children.
Changes: Paragraphs (b), (c), and (d) have been reorganized as
paragraph (b) and (c) and revised to include the substance of the note.
The note has been deleted.
Permissive Use of Funds (Sec. 300.235)
Comment: Some commenters requested clarification as to whether LEAs
are still required to maintain ``time and effort'' or other records to
document that Part B funds have been expended only on allowable costs.
Other commenters expressed their concern that, with no limitation on
the number of children who do not have disabilities who may benefit
from special education and related services, the needs of children with
disabilities will not be met. Some commenters asked that the regulation
be revised to require regular financial audits to ensure compliance
with the excess cost requirements.
Discussion: Section Sec. 300.235 sets forth circumstances under
which an LEA may use Part B funds to pay 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 and to develop and implement a fully integrated
and coordinated services system; this
[[Page 12573]]
section does not impact the documentation requirements where an LEA
uses a particular individual to provide special education or related
services during one portion of the day or week and to perform other
functions at other times for which the LEA cannot pay using Part B
funds.
Although Sec. 300.235 makes clear that Part B does not prohibit
benefit to nondisabled children, it does not permit Part B funds to be
expended in a regular class except for special education and related
services and supplementary aids and services to a child with a
disability in accordance with the child's IEP. If special education and
related services are being provided to meet the requirements of the IEP
for a child with a disability, this provision permits other children to
benefit, and in such circumstances no time and effort records are
required under Federal law, thus reducing unnecessary paperwork.
This provision does not in any way diminish an SEA or other public
agency's responsibilities under Part B to ensure that FAPE is made
available to each eligible child with a disability. Each SEA must, as
part of its general supervision responsibility under Sec. 300.600,
ensure compliance with the requirements of Sec. 300.235; the methods
that the SEA uses to ensure compliance may include monitoring and
financial audits of LEAs. Under the Single State Audit Act, SEAs are
required to ensure that periodic audits are conducted, and the General
Education Provisions Act requires periodic monitoring.
Changes: None.
Treatment of Charter Schools and Their Students (Sec. 300.241)
Comment: None.
Discussion: The proposed note clarified that the provisions of this
part that apply to other public schools also apply to public charter
schools, and, therefore, children with disabilities who attend public
charter schools and their parents retain all rights under this part.
The Senate and House Committee Reports on Pub. L. 105-17, which, in
reference to this provision states:
The Committee expects that charter schools will be in full
compliance with Part B. (S. Rep. No. 105-17, p 17, H. R. Rep. No.
105-95, p. 97 (1997))
Thus, to ensure the protections of the rights of children with
disabilities and their parents, this concept should be incorporated
into the regulations.
Changes: The substance of the note has been incorporated into the
discussion under Sec. 300.18, and in the regulations under
Sec. 300.312. The note has been deleted.
Subpart C
Provision of FAPE (Sec. 300.300)
Comment: Some commenters expressed support for a seamless system of
services for disabled children from birth through age 21, and
recommended that Note 3 under Sec. 300.300 be added to the regulation
to highlight the need for States to plan their child find and other
activities to meet the age range for FAPE. A few commenters stated
their understanding that the exemption to the ``50% rule'' in
Sec. 300.300 (related to FAPE for disabled children aged 3 through 5 in
States receiving a Preschool grant) was temporary, and asked if the
exemption would continue in effect.
Discussion: In light of the previous discussion regarding the
disposition of notes under this part (see ``General Comments''), Note
3, which provides only clarifying information to explain why the age
range for child find (birth through age 21) is greater than the age
range for providing FAPE, should be deleted and not moved into the
regulation. Further, Note 1 (FAPE applies to children in school and
those with less severe disabilities) is no longer relevant as the
statute now is commonly understood to apply to all children with
disabilities, not just those out of school or with severe disabilities,
and should be deleted. The substance of Note 2 (importance of child
find to the FAPE requirement) should be incorporated into the text of
the regulation at Sec. 300.300(a)(2) because of the crucial role that
an effective child find system plays as part of a State's obligation of
ensuring that FAPE is available all children with disabilities.
The provision in Sec. 300.300(b)(4) clarifies that if a State
receives a Preschool Grant under section 619 of the Act, the ``50%
rule'' does not apply with respect to disabled children aged 3 through
5 years, because the State must ensure that FAPE is available to
``all'' disabled children in that age range within the State--as a
condition of receiving such a grant. (See Secs. 301.10 and 301.12)
Therefore, this provision should be included, without change, in these
final regulations.
Changes: The substance of Note 2 has been added as a new paragraph
(a)(2). Notes 1--3 have been removed.
FAPE--Methods and Payment (Sec. 300.301)
Comment: One commenter stated that there is no authority in Federal
law to permit a State to use unlimited local resources to meet the
State's requirement for FAPE, and recommended that the statement in
Sec. 300.301(a) related to using whatever State, local, or private
sources of support be replaced by providing that a State may use all of
its State funds to ensure FAPE. Some commenters requested that a new
paragraph (c) be added to clarify that there can be no delay in the
provision of FAPE while the SEA determines the payment source for IEP
services.
Discussion: Section 300.301 is a long-standing provision that was
included, without change, in the NPRM. The section merely clarifies
that each State may use other sources of support for meeting the
requirements of this part, in addition to State education funds or Part
B funds.
It would be appropriate to add a new paragraph to Sec. 300.301 to
clarify that there can be no delay in implementing a child's IEP in any
case in which the payment source for providing or paying for special
education and related services to the child is being determined.
Section 300.142 also addresses the role of the public agency in
ensuring that special education and related services are provided if a
noneducational agency fails to meet its responsibility and specifies
that services must be provided in a timely manner, while the payment
source for services is being determined. Further, because Secs. 300.342
and 300.343 also address the timely development and implementation of a
child's IEP, it is appropriate to include a reference to those sections
in Sec. 300.301.
Changes: A new paragraph (c) has been added to ensure, consistent
with the above discussion, that there is no delay in providing services
while the payment source is being determined.
Residential Placement (Sec. 300.302)
Comment: A few commenters requested that the regulations clarify
that costs for residential placements include the expenses incurred by
parents' travel to and from the program and the cost of telephone calls
to the placement. One commenter stated that the LEA should be
responsible for the educational costs if the system cannot meet the
needs of the student, and that other appropriate related service
agencies should assume the cost of care and treatment.
Discussion: Section 300.302 is a long-standing provision that
applies to placements that are made by public agencies in public and
private institutions for educational purposes. The note following this
section should be deleted in light of the general decision to remove
all notes from these final regulations.
[[Page 12574]]
A statement clarifying that costs for residential placements
include the expenses incurred by parents' travel to and from the
program and the cost of telephone calls to the placement is included in
the analysis of comments on the definition of ``special education''
(see Sec. 300.26). The regulations already address the respective
responsibilities of the SEA, LEAs, and noneducational agencies under
this part (see, for example, Secs. 300.121, 300.142, and 300.220).
Changes: The note has been deleted.
Proper Functioning of Hearing Aids (Sec. 300.303)
Comment: Comments received on Sec. 300.303 included requests to:
(1) clarify that LEAs cannot ensure proper functioning of hearing aids
unless students report non-working devices, especially students who are
in private or out-of-school placements (because it is beyond the LEAs'
capability to monitor whether devices are working); (2) provide that
LEAs are not responsible for hearing aids damaged by misuse within non-
school environments; (3) revise the section to address other AT
devices; (4) ensure the provision is consistently met, using qualified
persons who check aids on a regular basis, and (5) delete the note
because it reflects 20 year-old appropriations committee report
language, and, therefore, is no longer relevant. Other comments
expressed concern that the section adds unnecessary paperwork and an
unfair financial burden.
Discussion: Section 300.303 has been included in the Part B
regulations since they were initially published in 1977. The note
following Sec. 300.303, which incorporated language from a House
Committee Report on the 1978 appropriation bill, served as the basis
for the requirement in Sec. 300.303. That report referred to a study
done at that time that showed that up to one-third of the hearing aids
for public school children were malfunctioning; and the report stated
that the [Department] must ensure that hearing impaired school children
are receiving adequate professional assessment, follow-up, and
services.
Section 300.303 was added to address that Congressional directive,
and has been implemented since 1977. The Department has routinely
monitored Sec. 300.303; and when a violation has been identified,
appropriate corrective action has been taken. Although it is important
that Sec. 300.303 be retained in the final regulations, the note is no
longer relevant, and should be deleted.
Questions relating to damage of hearing aids are addressed in the
analysis of comments on the definitions of assistive technology devices
and services (see Secs. 300.5 and 300.6).
Changes: The note following Sec. 300.303 has been deleted.
Full Educational Opportunity Goal (Sec. 300.304)
Comment: Some commenters expressed support for Sec. 300.304. One
commenter stated that SEAs and LEAs should be required to improve the
general quality of education in ways that will benefit the disabled,
including submitting plans and timetables relating to such
improvements. Another commenter recommended updating the note to use
``people first'' language consistent with the IDEA, as amended in 1990,
and to make reference to quality education programs. Other commenters
recommended that the note be deleted.
Discussion: The requirement that there be a goal of ensuring full
educational opportunity to all children with disabilities predates the
FAPE requirement in Pub L. 94-142. The IDEA Amendments of 1997 are
sufficiently clear to not require an elaboration of the full
educational opportunity goal. Further, in light of the general tenor of
comments received on this section, and the comments and discussion
relating to the disposition of notes (see analysis of general
comments), it is clear that there would not be sufficient benefit
gained to justify updating or retaining the note.
Changes: The note following Sec. 300.304 has been deleted.
Program Options (Sec. 300.305)
Comment: Some commenters expressed support for this section,
stating that disabled children must have the same opportunities as
their nondisabled peers. One commenter stated that Secs. 300.305 and
300.306 go beyond the new statute and are made moot by the provisions
about including students in the regular curriculum as much as possible.
Another commenter requested that the section be amended to make it
clear that the list of items is not exhaustive.
Discussion: The provisions of Secs. 300.305 and 300.306 do not go
beyond the requirements of Part B of the Act. These are long-standing
regulatory provisions that were included, unchanged, in the NPRM, and
have been reinforced by the IDEA Amendments of 1997, through provisions
requiring that children with disabilities be included in the general
curriculum, and enabling them to meet State standards. The definition
of the term ``include'' in Sec. 300.13 makes it clear that the list of
programs and services is not exhaustive. Therefore, the note following
Sec. 300.305 is unnecessary.
Changes: The note following Sec. 300.305 has been deleted.
Nonacademic Services (Sec. 300.306)
Comment: One commenter stated that this section will require
documenting an array of non-academic and extracurricular services and
activities, and that it should be rephrased so that it will not lead to
more unnecessary paperwork. Another commenter requested that the
section be amended to clarify that participation in extracurricular
activities is not a component of a disabled child's program.
Discussion: Section 300.306, as well as Sec. 300.553 (``Nonacademic
settings'') are long-standing provisions that were included, without
change, in the NPRM. There is no basis for assuming that the provisions
in these sections will result in any unnecessary or increased
paperwork.
Changes: None.
Physical Education (Sec. 300.307)
Comment: Several commenters requested that the regulations clarify
that each public agency is responsible for making sure that special
physical education (PE) (including adapted PE) is provided by qualified
personnel, and not by classroom teachers, aides, related services
personnel, or other unqualified personnel. One commenter stated that
Sec. 300.307(b) should replace ``available to nondisabled children''
with the phrase ``to the extent available to all children.''
Discussion: Section 300.307(b), which provides that each child with
a disability has the opportunity to participate in the regular PE
program available to nondisabled children, is clear as written, and
there is no basis for making the change recommended by the commenters.
It is not necessary to amend Sec. 300.307 to state that specially
designed PE must be provided by qualified personnel because SEAs are
already required under Sec. 300.136 to determine what standards must be
met for all special education and related services personnel within the
State. The note following Sec. 300.307, which provided important
guidance in the original regulations under this part, is no longer
necessary, in light of the comments relating to the disposition of
notes.
Changes: The note following Sec. 300.307 has been deleted.
[[Page 12575]]
Assistive Technology (300.308)
Comment: Some commenters expressed support for Sec. 300.308,
stating that disabled students must have the tools they need to
succeed. A few commenters requested that a note be added to describe
what assistive technology (AT) devices would be available for children
with hearing impairments, including deafness. One of the commenters
requested listing specific devices (e.g., captioning, computer
software, FM systems, and hearing aids).
Discussion: The AT devices for children with hearing impairments
identified by the commenters are appropriate AT devices under this
part. However, it is not necessary to list such devices in these
regulations. Moreover, it would be inappropriate to list AT devices for
one disability category without listing such devices for other
disability categories. This position is consistent with the previously
stated position related to including examples of AT devices in these
regulations (see analysis of comments under Secs. 300.5 and 300.6).
Some examples of AT devices include word prediction software, adapted
keyboards, voice recognition and synthesis software, head pointers, and
enlarged print.
Under Section 504 of the Rehabilitation Act of 1973, 34 CFR Part
104, and the Title II of the Americans with Disabilities Act of 1990,
28 CFR Part 35, local educational agencies are responsible for
providing a free appropriate public education to qualified students
with disabilities who are within their jurisdiction. To the extent that
assistive technology devices are required to meet the obligation to
provide FAPE for an individual student, the devices must be provided at
no cost to the student or his or her parents or guardians.
Changes: No change has been made to this section in response to
these comments. See discussion under Sec. 300.6 regarding a change to
Sec. 300.308.
Extended School Year Services (Sec. 300.309)
Comment: A number of commenters expressed support for this
regulation. Because Notes 1 and 2 following Sec. 300.309 provide
important clarification regarding criteria for providing extended
school year (ESY) services, some commenters recommended that these
notes be added to the regulations.
Other commenters requested that Sec. 300.309 be deleted because it
has no statutory base, and could be interpreted to require ESY services
for all disabled children regardless of what the child's IEP indicates
is appropriate for the child. One comment noted that responsibility for
providing ESY services will be extremely costly and likely will require
large expenditures of local dollars.
Several commenters requested that both notes be deleted because
Note 1 is ambiguous and unnecessary since the regulation is
sufficiently clear, and Note 2 is not appropriate because all children
regress in the summer.
Numerous comments were received regarding the standards referenced
in Note 2 that States can establish for use in determining a child's
eligibility for ESY services. One comment urged the adoption of a
Federal standard and formula for determining unacceptable rates of
recoupment. One recommendation was that while Note 2 should be added to
the regulation, it should be changed to clarify that the list of
factors is not exhaustive.
Another comment stated that ``regression/recoupment'' is a minimum
standard that should be used in determining a child's eligibility for
ESY services. Other commenters indicated that regression/recoupment is
too narrow a standard, and recommended adding to the regulations
additional criteria that courts have used to determine eligibility
(e.g., whether the child has emerging skills, the nature or severity of
the disability, and special circumstances, such as prolonged absence or
other serious blocks to learning progress, which in the view of the IEP
team could be addressed by ESY services).
Another comment recommended that the list of factors be revised to
specify ``evidence or likely indication of significant regression and
recoupment.'' One comment recommended that the reference to
``predictive data'' be expanded to ``predictive data and other
information based on the opinion of parents and professionals.''
Another comment stated that, although the regulation should
incorporate Note 2 and permit States to establish standards for
determining ESY eligibility, public agencies also should be required to
make these standards available to parents either at IEP meetings or on
request.
One comment recommended deleting Note 2 because it is too narrow
and inconsistent with case law. According to the comment, the ESY
standard should be flexible and permit consideration of a variety of
factors (e.g., whether the child's current level of performance
indicates that the child will not make ``meaningful progress'' during
the regular school year in the general curriculum or in other areas
pertinent to child's disability-related needs).
Several comments recommended other specific changes to
Sec. 300.309, such as the following: (1) Section 300.309(a)(2) should
be revised to state that the determination of whether a child needs ESY
services, including the type and amount of services, must be made by
the IEP team and should be specified in the child's IEP; (2) the
regulation should specify a timeline for determining eligibility for
ESY services to enable the parents to take appropriate steps to
challenge the denial of services; (3) the regulation should clarify
whether ESY services are limited only to summer programming or to other
breaks in the school calendar; and (4) no one factor can be the sole
criterion for determining whether a child receives ESY services.
Another comment requested that clarification be added to specify
that ESY services must be provided in the least restrictive
environment, and that to ensure that this occurs, students with
disabilities may have to receive ESY services in noneducational
settings.
One comment requested that a note be added to clarify that the
process for determining the length of a preschool child's school year
must be individualized and described in the child's IEP/IFSP, and added
that the decision is not necessarily based on school-aged ESY practices
or formulas, which may be inappropriate for younger children, and that
if a child turns three during the summer, the child should receive ESY
services if specified in the IEP or IFSP.
Other comments requested that the regulations: add a new paragraph
(c) to address the needs of disabled children enrolled in private
facilities and include additional guidance relating to an LEA's
obligation to conduct necessary evaluations during the summer when a
child arrives in an LEA in the summer with an IEP from another LEA that
requires ESY services.
Discussion: The regulation and notes related to ESY services were
not intended to create new legal standards, but to codify well-
established case law in this area (and, thus, ensure that the
requirements are all in one place). Since the requirement to provide
ESY services to children with disabilities under this part who require
such services in order to receive FAPE is not a new requirement, but
merely reflects the longstanding interpretation of the IDEA by the
courts and the Department, including it in these regulations will not
impose any additional financial burden on school districts.
On reflection and in view of the comments, it has been determined
that
[[Page 12576]]
this regulation should be retained, and that Note 1 following
Sec. 300.309, with some modifications, should be incorporated into the
text of the regulation. Section 300.309 and accompanying notes clarify
the obligations of public agencies to ensure that students with
disabilities who require ESY services in order to receive FAPE have
necessary services available to them, and that individualized
determinations about each disabled child's need for ESY services are
made through the IEP process. The right of an individual disabled child
to ESY services is based on that child's entitlement to FAPE. Some
disabled children may not receive FAPE unless they receive necessary
services during time periods when other children, both disabled and
nondisabled, normally would not be served. Both parents and educators
have raised issues for many years about how determinations about ESY
services can be made consistent with the requirements of Part B.
The clarification provided in Note 1 in the NPRM is essential to
ensuring that public agencies do not limit eligibility for ESY services
to children in particular disability categories, or the duration of
these necessary services. Since these issues are key to ensuring that
each disabled child who requires ESY services receives necessary
services in order to receive FAPE, this concept from Note 1 should be
incorporated into this regulation.
In the past, the Department has declined to establish standards for
States to use in determining whether disabled children should receive
ESY services. Instead, the Department has said that States may
establish State standards for use in making these determinations so
long as the State's standards ensure that FAPE is provided consistent
with the individually-oriented focus of the Act and the other
requirements of Part B and do not limit eligibility for ESY services to
children in particular disability categories. These regulations
continue this approach.
Within the broad constraints of ensuring FAPE, States should have
flexibility in determining eligibility for ESY services, and a Federal
standard for determining eligibility for ESY services is not needed. As
is true for other decisions regarding types and amounts of services to
be provided to disabled children under Part B, individual
determinations must be made in accordance with the IEP and placement
requirements in Part B.
Regarding State standards for determining eligibility for ESY
services, Note 2 was not intended to provide an exhaustive list of such
standards. Rather, the examples of standards that were included in Note
2 (e.g., likelihood of regression, slow recoupment, and predictive data
based on the opinion of professionals) are derived from well-
established judicial precedents and have formed the basis for many
standards that States have used in making these determinations. See,
e.g., Johnson v. Bixby ISD 4, 921 F.2d 1022 (10th Cir. 1990); Crawford
v. Pittman, 708 F.2d 1028 (5th Cir. 1983); GARC v. McDaniel, 716 F.2d
1565 (11th Cir. 1983). It also should be pointed out that nothing in
this part is intended to limit the ability of States to use variations
of any or all of the standards listed in Note 2. Whatever standard a
State uses must be consistent with the individually-oriented focus of
the Act and may not constitute a limitation on eligibility for ESY
services to children in particular disability categories.
To ensure that children with disabilities who require ESY services
receive the services that they need, a high priority is being placed on
monitoring States' implementation of this regulation in the next
several years to ensure that State standards are not being applied in a
manner that denies children with disabilities who require ESY services
in order to receive FAPE access to necessary services. However, to give
States needed flexibility in this area, the regulations should clarify
that States may establish their own standards for determining
eligibility for ESY services consistent with the requirements of this
part.
To respond to a concern expressed in the comments that this
regulation could require the provision of ESY services to every
disabled child, regardless of individual need, paragraph (a)(2) has
been revised to make clear that ESY services must be provided only if a
child's IEP team determines, on an individual basis, in accordance with
Secs. 300.340-300.350, that the services are necessary for the
provision of FAPE to the child.
Although it is important that States inform parents about standards
for determining eligibility for ESY services, a regulatory change is
not necessary. Since this matter is relevant to the provision of FAPE,
it already would be included in the information contained in the
written prior notice to parents provided under this part for children
for whom ESY services are an issue.
There is no need to incorporate the IEP team's responsibility to
specify the types and amount of ESY services. Section 300.309(a)(2)
already specifies that the determination of whether a child with a
disability needs ESY services must be made on an individual basis by
the IEP team in accordance with Secs. 300.340-300.350. These IEP
requirements include specifying the types and amounts of services
consistent with the individual disabled child's right to FAPE.
The determination of whether an individual disabled child needs ESY
services must be made by the participants on the child's IEP team. In
most cases, a multi-factored determination would be appropriate, but
for some children, it may be appropriate to make the determination of
whether the child is eligible for ESY services based only on one
criterion or factor. In all instances, the child's IEP team must decide
the appropriate manner for determining whether a child is eligible for
ESY services in accordance with applicable State standards and Part B
requirements. Therefore, no requirements have been added to the
regulation regarding this issue.
There is no need to specify a timeline for determining whether a
child should receive ESY services. Public agencies are expected to
ensure that these determinations are made in a timely manner so that
children with disabilities who require ESY services in order to receive
FAPE can receive the necessary services.
No further clarification has been provided regarding the times when
ESY services can be offered. Section 300.309(b)(1)(i) specifies that
ESY services are provided to a child with a disability ``[b]eyond the
normal school year of the public agency.'' For most public agencies,
the normal school year is 180 school days. Typically, ESY services
would be provided during the summer months. However, there is nothing
in the definition of ESY services in Sec. 300.309(b) that would limit
the ability of a public agency to provide ESY services to a student
with a disability during times other than the summer, when school is
not in session, if the IEP team determines that the child requires ESY
services during these time periods in order to receive FAPE.
There is no need to provide clarification regarding the comment
that public agencies may wish to use different standards in determining
eligibility of preschool-aged children with disabilities for ESY
services from those used for school-aged children. Since Part B does
not prescribe standards for determining eligibility for ESY services,
regardless of the child's age, the issue of whether a State should
establish a different standard for school-aged and preschool-aged
children is a matter for State and local educational authorities to
decide.
[[Page 12577]]
The IEP or IFSP will specify whether services must be initiated on
the child's third birthday for children with disabilities who
transition from the Part C to the Part B program, if the child turns
three during the summer. This means that ESY services would be provided
in the summer if the IEP or IFSP of a child with a disability specifies
that the child must receive ESY services during the summer. In any
case, the IEP or IFSP must be developed and implemented in accordance
with the terms of those documents by the child's third birthday. These
responsibilities are clarified elsewhere in these regulations.
No additional clarification is being provided in this portion of
the regulations as to whether parentally-placed disabled students can
receive ESY services. As is true for determinations regarding services
for children with disabilities placed in private schools by their
parents, determinations regarding the services to be provided,
including the types and amounts of such services and which children
will be served, are made through a process of consultation between
representatives of public agencies and representatives of students
enrolled by their parents in private schools. Through consultation, if
a determination is made that ESY services are one of the services that
a public agency will offer one or more of its parentally-placed
disabled children, Part B funds could be used for this purpose.
No regulatory change has been made regarding the application of LRE
requirements to ESY services. While ESY services must be provided in
the LRE, public agencies are not required to create new programs as a
means of providing ESY services to students with disabilities in
integrated settings if the public agency does not provide services at
that time for its nondisabled children. However, consistent with its
obligation to ensure that each disabled child receives necessary ESY
services in order to receive FAPE, nothing in this part would prohibit
a public agency from providing ESY services to an individual disabled
student in a noneducational setting if the student's IEP team
determines that the student could receive necessary ESY services in
that setting. No further clarification is needed regarding the comment
about requirements for evaluating students who move into LEAs during
the summer to determine eligibility for ESY services. Requirements for
child find are addressed elsewhere in these regulations.
Changes: Consistent with the above discussion, paragraph (a)(2) of
Sec. 300.309 has been revised, and a new paragraph (a)(3) has been
added to this section to specify that (1) ESY services must be provided
only if a child's IEP team determines the services are necessary for
the provision of FAPE to the child; and (2) Public agencies may not
limit eligibility for ESY services based on category of disability, and
may not unilaterally limit types and amounts of ESY services. Notes 1
and 2 have been removed.
FAPE Requirements for Students With Disabilities in Adult Prisons
(Sec. 300.311)
Comment: Several commenters requested that the regulation include a
definition of ``bona fide security or compelling penological interest
that cannot otherwise be accommodated.'' Several commenters requested a
definition that would clarify that this exception is to be used only in
unique situations. These commenters requested that the definition
specifically exclude routine issues of prison administration and
convenience, cost-reduction measures, and policies to promote
discipline or rehabilitation through systematic withholding of
educational services which are otherwise required. Another commenter
requested that the terms be defined to include prudent correctional
administration, and physical or mental health determinations by prison
health officials.
One commenter stated that the regulation should include guidance as
to when an IEP or placement can be modified under the stated exception
for modifications. Another commenter requested that the regulations
clarify that modifications to IEP or placement may only be made by the
IEP team and these changes are covered by the notice requirements of
the Act.
Another commenter opposed services to students alleged to have
committed heinous crimes and requested that a free appropriate public
education be limited to those students who would otherwise be denied
access to education services by virtue of their incarceration.
One commenter requested a definition of the term ``last educational
placement'' to clarify that this means a public or private school
placement.
Another commenter requested that a student's ``potential''
eligibility for early release be considered in determining eligibility
for transition services.
Discussion: The requirement that the student's IEP team make an
individualized determination regarding modifications to IEP or
placement are clearly stated in the regulations. This requirement
ensures that a team of professionals with knowledge about the student
will be able to weigh the request of the State and make an
individualized determination as to whether the State has demonstrated a
bona fide security or compelling penological interest. In addition, the
IEP team would need to consider possible accommodations of these
interests and only decide to modify the IEP or placement in situations
where accommodations are not possible. This provision also allows the
State to address any issues specific to persons alleged of committing
heinous crimes.
This provision does not impact an individual's eligibility for
services, rather it allows the IEP team to make temporary modifications
to the IEP or placement. These modifications are to be reviewed
whenever there is a change in the State's bona fide security or
compelling penological interest and at least on a yearly basis when the
IEP is reviewed.
A definition of the terms ``bona fide security or compelling
penological interest'' is not appropriate, given the individualized
nature of the determination and the countless variables that may impact
on the determination. Further, a State's interest in not spending any
funds on the provision of special education and related services or in
administrative convenience will not rise to the level of a compelling
penological interest that cannot otherwise be accommodated, because
States must accommodate the costs and administrative requirements of
educating all eligible individuals with disabilities.
Further, since a modification to the IEP or placement is a change
in the placement or in the provision of a free appropriate public
education, the notice requirements under the Act would clearly be
invoked.
There is no need to define the term ``last educational placement''
because the term is sufficiently clear.
Finally, there is no need to further clarify eligibility for
transition services. Since consideration for transition services is
also part of the IEP process, eligibility determinations should be
addressed by the IEP team based upon the State's sentencing and parole
policies, which may include potential eligibility for early release.
Changes: None.
Children With Disabilities in Public Charter Schools (Sec. 300.312)
See comments, discussion, and changes under Sec. 300.18.
[[Page 12578]]
Children Experiencing Developmental Delays (Sec. 300.313)
See comments, discussion, and changes under Sec. 300.7.
Initial Evaluations (Sec. 300.320)
Comment: A few commenters requested that the regulation be amended
to require that initial evaluations be comprehensive so that each child
is tested in all areas of possible disability, not just areas of
suspected disability (e.g., a child who is having behavior problems may
be acting out of frustration over unrecognized learning disabilities).
Another commenter expressed concern that terms such as ``in all areas
of suspected disability'' and the requirement to conduct evaluations in
the native language do not appear in the NPRM, although they were in
prior regulation and in Appendix A. Another commenter recommended that
at least three diagnosticians from different disciplines actually
evaluate a child, and added that this helps ensure that the evaluation
is broad-based, nondiscriminatory, and relies on more than one method
to determine eligibility.
One commenter recommended that Sec. 300.320(a) repeat the language
of the statute (i.e., that the LEA ``shall conduct'' initial
evaluations, rather than ``shall ensure that initial evaluations are
conducted''); that the reference to applicable sections under
Secs. 300.530-300.536 be revised; and that other technical and
conforming changes be made. A few commenters recommended amending
Sec. 300.320(b)(2) to add a provision requiring the IEP team to provide
copies of all evaluations to the parents and all team members
sufficiently in advance of the meeting at which they will be reviewed
so that all have time to review the results prior to the meeting.
Discussion: The general requirement to conduct evaluations and
reevaluations was added to Subpart C (Secs. 300.320-300.321) in the
NPRM to sequentially place evaluations as a preliminary step in
determining a child's eligibility before convening an IEP team to
develop the child's IEP. However, the specific evaluation requirements
are included in Subpart E (Secs. 300.530-300.536). Those requirements,
especially the ones in Sec. 300.532, are long-standing provisions that
require the evaluations to be multifactored and administered in the
child's native language or other mode of communication, unless it is
clearly not feasible to do so. Section 300.532(g) makes clear that the
evaluation must include ``all areas related to the suspected
disability.''
If public agencies are in full compliance with these evaluation
requirements, the initial evaluations will be sufficiently
comprehensive to identify any disability that an individual child may
have, including any disability that was not initially suspected.
Further, the failure to provide such an evaluation is an implementation
issue and not a regulatory issue. Therefore, no change is needed in
this provision.
Section 300.320(a) of the NPRM states that each public agency
``shall ensure that'' a full and individual evaluation is conducted for
each child with a disability. It is not necessary to substitute ``shall
conduct'' for the language in the NPRM. The term used in the NPRM and
in these final regulations places the burden squarely on the public
agency to implement the evaluation requirements either directly, by
using public agency staff to conduct the evaluations, or by contracting
with other agencies or individuals to do so.
Technical and conforming changes that have been recommended should
be reflected in these final regulations to the extent that they are
determined to be relevant. For example, contrary to the commenter's
recommendation, Sec. 300.533 (determination of needed evaluation data)
may be germane to initial evaluations as well as reevaluations, and,
therefore should be included in the listed sections under
Sec. 300.320(b)(ii).
To the extent feasible, the results of evaluations conducted under
this part should be provided to parents and appropriate school
personnel before any meeting to discuss the identification, evaluation,
or educational placement of the child, or the provision of FAPE to the
child. However, this is an implementation matter that should be left to
the discretion of individual public agencies. In administering the Part
B program over the past 22 years, concerns about evaluation teams not
having timely access to evaluation results have seldom been raised with
the Department.
Changes: The authority citation for the section has been revised to
add a reference to section 614(c) of the Act.
Reevaluations (Sec. 300.321)
Comment: Some commenters expressed support for Sec. 300.321, and
stated that the importance of sharing the evaluation information with
the IEP team is vital. One commenter recommended that a wording change
be made in Sec. 300.321(b); that the reference to applicable sections
under Secs. 300.530-300.536 be revised; and that other technical and
conforming changes be made.
Discussion: Technical and conforming changes as recommended by the
commenter should be reflected in these final regulations, if relevant.
Changes: Paragraph (a) of Sec. 300.321 has been amended to delete
``Secs. 300.530-300.536'' from the list of applicable sections and
replace it with ``Sec. 300.536.'' Paragraph (b) has been revised to
replace the term ``used'' with ``addressed.''
Definitions Related to IEPs (Sec. 300.340)
Comment: None.
Discussion: To clarify that IEPs are developed, reviewed, and
revised at IEP meetings, a change would be made to paragraph (a) of
this section. However, as the Committee reports to the Act noted:
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. (S. Rep. No. 105-17, p. 5
(1997); H. Rep. No. 105-95, pp. 100-101 (1997))
SEA Responsibility for IEPs(Sec. 300.341)
Comment: A few commenters stated that the manner in which the term
``that agency'' is used in Sec. 300.341 is confusing because it is not
always clear whether the term is applying to the SEA or to other
agencies described in the section and in Note 1, and requested that
appropriate changes be made. One commenter stated that additional
language is needed in the section to expand on the State's ultimate
obligation to ensure district compliance with all IDEA requirements.
Several comments were received relating to Sec. 300.341(b). One
commenter stated that ``religiously-affiliated'' may be broader than
parochial, but it inadvertently excludes private schools with a
religious focus that are not affiliated but rather are freestanding,
and recommended using ``religiously-oriented'' instead. Another
commenter recommended using only ``private school,'' and deleting
``religiously affiliated,'' stating that there is no basis for using
that term.
[[Page 12579]]
Some commenters stated that the term ``IEP'' has an explicit
meaning in IDEA--as an inherent component of FAPE, and recommended that
another term other than ``IEP'' be used with respect to children in
private schools, who are not entitled to FAPE. Another commenter
recommended that the statement requiring that an IEP is developed and
implemented be revised to include a reference to the proportionate
expenditure requirements in Subpart D.
One commenter recommended that the statement in
Sec. 300.341(b)(2)(ii) regarding ``special education or related
services'' be amended to replace ``or'' with ``and'' in order to avoid
any implication that a child may receive only related services. Another
commenter suggested deleting the entire reference to related services.
One commenter recommended requiring that (1) any nonpublic school
that is licensed by the SEA or receives any other tax or benefit from
the State must develop an IEP for each disabled student, and (2) LEAs
provide the student with a supplemental IEP showing the additional
services that the LEA will provide.
Discussion: The language of this section, and especially the note,
should be modified to ensure that the term ``SEA'' is used
consistently, to avoid the confusion identified by the commenters. This
can best be accomplished, and the section strengthened, by moving the
substance of the note into the text of the regulation. The comment
related to ensuring compliance with all provisions of IDEA is addressed
by Sec. 300.600, which provides that the SEA is responsible for
ensuring such compliance.
In drafting the NPRM the term ``religiously-affiliated'' was
adopted instead of the statutory term ``parochial,'' based on the
assumption that Congress intended that all religious schools be
included, not just those organized on a parish basis. The intent was
for the broadest possible coverage. However, in light of the comment
related to this matter, the term ``religiously-affiliated'' does not
account for other religious schools that are not affiliated. The term
should be replaced with the more comprehensive term ``religious
schools.'' That term will be used throughout these regulations to
replace ``religiously-affiliated.''
Another term other than ``IEP'' should be used with respect to
disabled children who are enrolled by their parents in private schools.
As noted by the commenters, (1) ``IEP'' is an inherent component of,
and an explicit term used in, the statutory definition of ``FAPE'', and
(2) the private school provisions in the IDEA Amendments of 1997 and
Sec. 300.454(a) make it clear that these children have no individual
right to receive some or all special education and related services
that they would be entitled to if enrolled in a public school.
Therefore, if it is determined, in accordance with Sec. 300.454(b)
(Consultation with representatives of private school children with
disabilities), that a given child is to receive special education and
related services under this part, the document used to denote those
services should have a different name. The term ``services plan'' has
been adopted as an appropriate term for use with these children.
Further, in light of the comments related to this section, and the
discussion in the preceding paragraph, all provisions related to
parentally-placed children in religious or other private schools
(including the provisions in proposed Secs. 300.341(b)(2) and 300.350)
should be incorporated, in revised form, under Subpart D (Children in
Private Schools).
The statute does not require a private school to unilaterally
develop an IEP for each disabled child enrolled in the school, or to
require a supplemental IEP for additional services that the LEA will
provide.
Changes: The name of Sec. 300.341 has been changed to
``Responsibility of SEA and other public agencies for IEPs.'' The
paragraph headings have been deleted, and Sec. 300.341 has been revised
consistent with provisions in Subpart D regarding parentally-placed
children with disabilities in religious or other private schools. A new
paragraph (b) incorporates the substance of the note following
Sec. 300.341, to clarify that the provisions of the section (related to
public agencies) also apply to the SEA, if the SEA provides direct
services under Sec. 300.370(a) and (b)(1). The note has been deleted.
The section has been further revised by making other technical and
conforming changes. A new paragraph has been added to Sec. 300.452(b)
related to the SEA's responsibility for eligible children enrolled in
religious schools.
When IEPs Must Be in Effect (Sec. 300.342)
Comment: Some commenters stated that, as used in Sec. 300.342(b)(2)
and Note 1, the terms ``as soon as possible'' and ``undue delay'' are
not meaningful and should be defined or clarified. The commenters
recommended that an outside timeline (e.g., 15 days following the IEP
meetings described in Sec. 300.343) be established for implementing
IEPs. Other commenters requested that Note 1 be deleted. A few
commenters indicated that the statement in Note 1 (regarding services
not being provided during the summer or a vacation period unless the
child requires such services) does not adequately identify LEAs'
obligations.
Discussion: It would not be appropriate to add an outside timeline
under Sec. 300.342(b) for implementing IEPs, especially when there is
not a specific statutory basis to do so. However, with very limited
exceptions, IEPs for most children with disabilities should be
implemented without undue delay following the IEP meetings described in
Sec. 300.342(b)(2).
There may be exceptions in certain situations. It may be
appropriate to have a short delay (e.g., (1) when the IEP meetings
occur at the end of the school year or during the summer, and the IEP
team determines that the child does not need special education and
related services until the next school year begins); or (2) when there
are circumstances that require a short delay in the provision of
services (e.g., finding a qualified service provider, or making
transportation arrangements for the child).
If it is determined, through the monitoring efforts of the
Department, that there is a pattern of practice within a given State of
not making services available within a reasonable period of time (e.g.,
within a week or two following the meetings described in
Sec. 300.343(b)), this could raise a question as to whether the State
is in compliance with that provision, unless one of the exceptions
noted above applies.
Changes: Paragraph (b) of this section is amended (consistent with
the discussion under Sec. 300.344(a)(2) and (3) of this Analysis) to
require that each public agency must ensure that (1) a child's IEP is
accessible to each regular education teacher, special education
teacher, related services provider and other service provider who is
responsible for its implementation; and (2) each of the child's
teachers and providers is informed of his or her specific
responsibilities related to implementing the child's IEP, and of the
specific accommodations, modifications, and supported that must be
provided for the child in accordance with the IEP. Note 1 has been
deleted. Note 2 (related to a 1997 date certain for certain
requirements regarding students with disabilities incarcerated in adult
prisons) also has been deleted. Subject headings have been added to
each paragraph in the section.
Comment: Several commenters expressed concern about Sec. 300.342(c)
and Note 3 (related to using an IFSP for a child aged 3 through 5), and
some of
[[Page 12580]]
the commenters recommended deleting paragraph (c)(2) and the reference
to it in Note 3. The commenters stated (for example) that (1) IFSPs
should be used for children under age 3, and IEPs for older children,
and parents should not have a choice; (2) an IFSP may not be
appropriate in the educational setting; (3) the requirement is
inconsistent with OSEP policy letters; (4) the use of an IFSP or IEP
requires only the two factors in Sec. 300.342(c)(1) (i.e., it is
consistent with State policy, and agreed to by the parents and the
agency); and (5) because Note 3 and the preamble to the NPRM indicate a
clear preference for an IEP rather than IFSP, a specific rationale
should be given.
One commenter requested that Note 3, or Appendix A, be amended to
underscore that special care must be taken by LEAs in agreeing to
continue children's IFSPs when they become eligible for an IEP--
especially if the IFSP does not have an educational component, because
research has shown a significant positive difference in school
readiness for kindergarten when children whose (prekindergarten)
program included an educational component, as compared to those who
attend custodial day care without an educational component. Another
commenter requested that Sec. 300.342(c) be revised to allow use of
IFSPs for children aged 3 and above without meeting the requirements in
paragraph (b)(2).
Discussion: It is important to retain in these final regulations
the general thrust of Sec. 300.342(c) from the NPRM (related to
requiring parental consent to using an IFSP in lieu of an IEP for a
child who moves from the Early Intervention Program under Part C of the
Act to preschool services under Part B of the Act). As a result of the
IDEA Amendments of 1997, there have been significant changes in the
statute, including an increased emphasis on the participation of
children with disabilities in the general curriculum, and on ensuring
better results for children with disabilities. 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.
As noted by at least one commenter, research has shown a
significant positive difference in school readiness for kindergarten if
children's ``prekindergarten'' programs included an educational
component, compared to those who attend custodial day care without an
educational component. In addition, the provisions related to the IFSP
under Part C can generally be replicated under Part B. Because of the
definition of ``FAPE,'' services that are determined necessary for a
child to benefit from special education must be provided without fees
and without cost to the parents.
Changes: Note 3 has been deleted.
Comment: Some commenters expressed support for Sec. 300.342(d) in
the NPRM (i.e., that all IEPs in effect on July 1, 1998 must meet the
new requirements in Secs. 300.340-300.351), stating that public
agencies have had since June 4, 1997 to prepare for changes in the IEP
requirements, many of which have already been in use in some agencies.
A few of the commenters requested that all IEPs developed during the
spring and summer of 1998 be in full compliance with the new
requirements.
A large number of commenters expressed concern about
Sec. 300.342(d), stating (for example) that it (1) is inconsistent with
section 201(a)(2)(A) of the Act; (2) will result in massive national
noncompliance and public financial liability; and (3) force pro forma
IEPs that will result in frustration and resentment on the part of
parents and local providers. The commenters requested that the
requirements be changed to provide that IEPs written on or after July
1, 1998 must meet the new requirements.
Discussion: It is appropriate to amend Sec. 300.342(d) to provide
that IEPs developed, reviewed, or revised on or after July 1, 1998 must
comply with the requirements in section 614(d) of the Act and
Secs. 300.340-300.350 of these final regulations. While we commend the
many public agencies that began as soon as the IDEA Amendments of 1997
was enacted to implement the new statutory requirements and already
have in place IEPs that meet these requirements, other public agencies
argued compellingly that they simply did not have the wherewithal to
ensure that, on July 1, 1998, all IEPs would fully comply with the new
IEP requirements, and that a phase-in period should be adopted in which
the anniversary date for each child's IEP meeting would be the basis
for revising the child's IEP to comply with the new requirements.
Requiring IEPs developed on or after July 1, 1998 to meet the new
requirements should result in more meaningful IEPs that focus on
effective implementation, consistent with the purposes of the IDEA
Amendments of 1997. At the same time, public agencies are strongly
encouraged to grant any reasonable requests from parents for an IEP
meeting to address the new IEP provisions. Public agencies are also
encouraged to inform parents of the important changes resulting from
the new IEP requirements so that they may be effective partners in the
education of their children.
Changes: Section 300.342(d) has been revised to state that all IEPs
developed, reviewed, or revised on or after July 1, 1998 must meet the
requirements of Secs. 300.340-300.350.
IEP Meetings (Sec. 300.343)
Comment: One commenter stated that, as written, Sec. 300.343(b)(1)
implies that an LEA is required to make an offer of services in
accordance with an IEP whether or not the child qualifies (i.e., before
the child is evaluated), and requested clarification of the provision.
Other commenters stated that the requirement should begin with
referral, not consent, and ``services'' should be referenced as
``special education and related services.''
Some commenters expressed support for the 30 day timeline in
Sec. 300.343(b)(2) (i.e., that an IEP meeting is conducted within 30
days of determining that a child needs special education). A few
commenters requested changing the provision to 30 ``school days.'' One
commenter recommended amending the provision to recognize that regular
education teachers are not available in the summer, because to the
extent participation of a regular education teacher is required at the
IEP meeting, the meeting would have to wait until teachers return.
A number of comments were received relating to Sec. 300.343(c)(1)
(Review and revision of IEPs). One commenter requested that paragraph
(c)(1) be amended to clarify that a child's IEP is reviewed
periodically if warranted, or requested by the child's parent or
teacher, and to include additional language related to determining if
the child is making meaningful progress toward attaining the goals and
standards for all children as well as goals and short term objectives
or benchmarks. Other commenters recommended requiring that a review
meeting be held when requested by an IEP team member, and that LEAs
honor ``reasonable'' requests from parents for timely IEP review
meetings.
One commenter requested amending paragraph (c)(2)(i) (related to
revising a child's IEP to address any lack of progress in the annual
goals) by adding benchmarks or short term objectives to the statement
related to annual goals. A
[[Page 12581]]
few commenters recommended deleting the reference to ``Other matters''
in Sec. 300.343(c)(2)(v) as the language is redundant and confusing.
A few commenters requested that a new Sec. 300.343(d) be added to
incorporate the statutory requirement in section 614(c)(4) (i.e.,
procedures to follow when the IEP team determines that no additional
data are needed to determine whether the child continues to be a child
with a disability). One commenter felt that an additional note should
be added to encourage combining the eligibility meeting with the
initial IEP meeting.
Discussion: There is potential for confusion with the language in
Sec. 300.343(b)(1) of the NPRM regarding whether a child must be
evaluated before the offer of services is made. It also would be more
appropriate to refer to ``special education and related services''
rather than referring simply to ``services.''
While the basic position taken in the NPRM with respect to
Sec. 300.343(b)(1) has been retained (i.e., an offer of services will
be made to parents within a reasonable period of time from the public
agency's receipt of parent consent to initial evaluation), the concept
of ``making services available'' to a child with a disability seems
more relevant to these final regulations than ``offer of services'' in
ensuring that FAPE is available to a child with a disability in a
timely manner.
Therefore, the regulations should be amended to clarify that,
within a reasonable period of time following consent to an initial
evaluation, the evaluation is conducted; and if the child is determined
eligible under this part, special education and related services are
made available to the child, in accordance with an IEP.
It would not be appropriate to change the reference to
Sec. 300.343(b)(1) from ``parent consent'' to ``referral'' because
informed consent of the parents is a necessary step in ensuring that
the evaluation will be conducted.
It also would not be appropriate to change the 30 day timeline in
Sec. 300.343(b)(2) to 30 ``school days.'' That timeline is a long-
standing provision that has been appropriately implemented since the
inception of the regulations under this part, and there is no basis to
make such a change.
A provision is not necessary to clarify that public agencies will
honor ``reasonable'' requests by parents for a meeting to review their
child's IEP. Public agencies are required under the statute and these
final regulations to be responsive to parental requests for such
reviews. If a public agency believes that the frequency or nature of
the parents' requests for such reviews is unreasonable, the agency may
(consistent with the prior notice requirements in Sec. 300.503) refuse
to conduct such a review, and inform the parents of their right to
request a due process hearing under Sec. 300.507. It should be noted,
however, that as a general matter, when a child is not making
meaningful progress toward attaining goals and standards applicable to
all children, it would be appropriate to reconvene the IEP team to
review the progress.
It is inappropriate and unnecessary to add ``benchmarks or short-
term objectives'' to the statement on annual goals in
Sec. 300.343(c)(2)(i). The language in that paragraph, which
incorporates the language from the statute, refers to ``the annual
goals described in Sec. 300.347(a).'' Section 300.347(a) states that
each child's IEP must include ``A statement of measurable annual goals,
including benchmarks or short-term objectives * * *''. Therefore,
benchmarks or short-term objectives are inherent in
Sec. 300.343(c)(2)(i), and do not need to be repeated.
It is not necessary to include a note encouraging public agencies
to combine the eligibility and initial IEP meetings. This is an
individual State option that many States have unilaterally elected to
follow in implementing Part B of the Act over the past 22 years, while
other States have determined that the better course is to hold separate
meetings.
Changes: The title of Sec. 300.343(b) has been changed from
``Timelines'' to ``Initial IEPs; provision of services.'' Paragraph
(b)(1) has been amended to (1) clarify that, within a reasonable period
of time from the agency's receipt of consent to an initial evaluation,
``the evaluation is conducted'', and (2) clarify the timing issue by
replacing ``offer of services * * * is made to parents'' with ``special
education and related services are made available to the child * * *''.
Paragraph (b)(2) has been changed by replacing the phrase ``In meeting
the timeline in paragraph (b)(1)'' with ``In meeting the requirement in
paragraph (b)(1).'' In the title to Sec. 300.343(c), the term ``IEP''
has been changed to ``IEPs.'' Paragraph (c)(2)(ii) has been revised to
correctly cite Sec. 300.536. The authority cite has been changed from
``1414(d)(3)'' to ``1414(d)(4)(A).''
Comment: A number of comments were received on the note following
proposed Sec. 300.343 (regarding the offer of services within 60 days
of parent consent to initial evaluation). Some commenters expressed
support for the 60 day time frame, stating that (1) many LEAs
experience significant delays in completing evaluations, especially
during the summer, and delay providing FAPE for a very long time, and
(2) if LEAs respond to requests for evaluation in a timely manner, 60
days is reasonable. Many of these commenters recommended that the note
be added to the regulation.
Other commenters recommended deleting the 60 day timetable in the
note, stating that (1) the timeline is not a reflection of the statute,
and Federal guidance is not necessary because most States have set
reasonable, child-friendly timetables for the initial provision of
services; (2) it is unrealistic, unreasonable, and ambiguous (3) it
would override time frames set by States, (4) the Department could
continue to monitor the issue of reasonableness in each State without
the timeline; and (5) while IEPs generally can be implemented within 60
days, this non-statutory requirement should not become the standard for
all cases.
Some commenters recommended changing the length of the timelines
(e.g., to 75 days, 80 days, 90 days, or 120 days), or using the
designation of ``school days'' or ``operational days,'' or adding a
caveat exempting school breaks and holidays from the 60 day timeline.
One commenter requested a clarification of timelines when the initial
evaluation occurs with less than sixty days remaining in the school
year.
Discussion: While it is critical that each public agency make FAPE
available in accordance with an IEP within a reasonable period of time
after the agency's receipt of parent consent to an initial evaluation,
imposing specific timelines could result in the timelines being
implemented only in a compliance sense, without regard to meeting the
spirit of the requirement, and this may not always serve the best
interests of the children involved.
Moreover, as indicated by some of the commenters, most States are
able to meet a timeline of 60 days. The Department considers this to be
reasonable, and will not make a finding of noncompliance when
monitoring a State that is meeting the 60 day timeline for most
children.
It is recognized, however, that it may, for some children, take
longer, and for some, it could be done in a shorter period of time.
Therefore, the note following Sec. 300.343 should be deleted, and no
timelines should be added to the final regulations relating to the
concept of ``within a reasonable period of time.'' Although no specific
timeline is given, implementation should be done with all due haste.
Changes: The note following Sec. 300.343 has been removed.
[[Page 12582]]
IEP Team (Sec. 300.344)
Comment: A wide variety of general comments was received regarding
this section. Some commenters believe that anyone expected to implement
the IEP should attend the IEP meeting. Numerous comments were received
regarding the note to this section of the NPRM. Some commenters
believed that the note should be deleted in its entirety because it
went beyond the statute, while other commenters recommended that only
portions be deleted, or that the note be included in the regulations
instead. Other commenters requested a limitation on the number of
people that could attend IEP meetings, with provision for an exception
when necessary.
Other commenters suggested that there should be a requirement that
an appropriate member of the IEP team meet with every teacher that
works with a student to explain goals and objectives contained in the
IEP and accommodations and modifications required by the teachers.
Discussion: In response to commenters' recommendations and in light
of the general decision not to use notes in these final regulations,
the note following this section of the NPRM should be removed as a
note. However, substantive portions should be incorporated, as
appropriate, into pertinent provisions of this section, reflected in
questions and answers on IEP requirements that are contained in
Appendix A to these regulations, or addressed in the discussion of
comments regarding this section.
No limitation on the number of individuals who can attend IEP
meetings should be imposed, as requested by commenters, since these
determinations are left to parents and public agencies, based on the
requirements of this section. These requirements are sufficient to
ensure that membership on the IEP team is limited to individuals who
have particular knowledge or expertise to bring to the meeting. No
clarification is needed here with regard to accommodations and
modifications for all personnel who implement a child's IEP, since that
requirement is addressed under Sec. 300.346(d)(2) of these regulations.
Changes: The note following this section of the NPRM has been
removed.
Comment: Some commenters recommended that this regulation be
amended to specify that parents can bring ``advocates of their choice''
to their child's IEP meetings. Other commenters recommended that the
regulation be clarified to state that parent support personnel can
attend IEP meetings if requested by the parent, and that if the
district disagrees with the attendance of a person invited by the
parent, they may file a complaint but must not prohibit that person
from attending the meeting.
Commenters also requested clarification regarding how the public
agency would document that it has ensured that the parent actually has
been given the opportunity to participate meaningfully at their child's
IEP meeting.
Discussion: As numerous commenters emphasized, it is essential that
parents are given the opportunity to participate meaningfully as
members of their child's IEP team. In many situations, an IEP meeting
can be a very intimidating experience for many parents, even if the LEA
encourages their active participation. Frequently, as commenters have
suggested, parents would be assisted greatly at their child's IEP
meetings if another person could accompany them. It is important to
point out that under IDEA and the original regulations for this
program, parents always have been afforded the opportunity to bring a
friend or neighbor to accompany them at their child's IEP meeting.
Question 26 in the Notice of Interpretation on IEP requirements,
published as Appendix A to 34 CFR part 300, in 1981, stated in a note
that, in some instances, parents might elect to bring another
participant to the meeting, e.g., a friend or neighbor, someone outside
of the agency who is familiar with applicable laws and with the child's
needs, or a specialist who conducted an independent evaluation of the
child.
Many parents traditionally have brought other individuals to
accompany them to their child's IEP meeting as a way of ensuring their
meaningful participation. Therefore, in response to commenters'
suggestions and to ensure that meaningful parent participation at their
child's IEP meeting is preserved, a new paragraph (c) should be added
to this section.
Changes: Section 300.344 has been amended by adding a new paragraph
(c) to clarify that ``[T]he determination of the knowledge or special
expertise of any individual described in paragraph (a)(6) of this
section shall be made by the party (the parents or the public agency)
who invited the individual to be a member of the IEP team.''
Comment: Numerous commenters addressed the requirement in proposed
Sec. 300.344(a)(2) and the pertinent portions of the note regarding the
role of the regular education teacher as a member of the child's IEP
team if the child is, or may be, participating in the regular
educational environment. Some commenters were supportive of the
participation of the regular education teacher at an IEP meeting,
agreeing that at least one regular education teacher of the child
should be an IEP team member. Some commenters also pointed out that
problems surrounding placement of a child with a disability in the
regular classroom cannot be addressed without adequate preparation or
participation of teachers of those classes in the IEP meeting.
Those commenters opposed to the requirement cited potential costs.
Some commenters also pointed out that, for children with disabilities
taking a number of subjects, it will be impossible to bring all
teachers together, while a single teacher will not have the requisite
expertise on a variety of subjects.
Other commenters who were supportive of the regular education
teacher's participation in principle, and acknowledged the importance
of obtaining input from a regular education teacher, recommended a more
flexible approach. These commenters felt that a requirement that a
regular education teacher be present at every IEP meeting would
interfere with the ability of regular education teachers to provide the
necessary instruction to all children in their classrooms, both with
and without disabilities. Specific recommendations that commenters made
for regulatory changes were (1) the reference to regular educational
environment in Sec. 300.344(a)(2) should be replaced with language such
as, if the child is, or may be, participating in a non-special
education classroom; (2) the reference to regular education teacher
should be replaced with general education teacher or person
knowledgeable about the general education curriculum at the child's
grade level; (3) the participation of a regular education teacher is
required only if issues arise regarding behavior or socialization,
making the input necessary; and (4) a regular education teacher must
attend if the child with a disability is, or may be, receiving
instruction from a regular education teacher during the period of time
covered by the proposed IEP.
Commenters made a number of other suggestions concerning which IEP
meetings the regular education teacher needs to attend and how those
determinations could be made, such as, (1) the regular education
teacher must attend only the annual IEP review meeting, but that
attendance at other meetings should be on an as-needed basis; (2) there
should be no requirement that the regular education
[[Page 12583]]
teacher be physically present at the IEP meeting, but must be given the
opportunity to provide oral or written input about the child and
appropriate instructional strategies; (3) the regular education teacher
must attend to the extent appropriate; (4) the IEP team must consult
with the regular education teacher to the extent appropriate, and
determine whether it is necessary for the regular education teacher to
attend all or part of the meeting; and (5) attendance is at the option
of the regular education teacher, who also can appoint an individual of
his or her choice who has had experience with the child and/or has had
adequate pre-planning time with special education personnel.
Other commenters asked whether other individuals could be
substituted for the regular education teacher's participation at IEP
meetings, such as, (1) a special education teacher who is knowledgeable
about the general curriculum; (2) a school counselor, particularly for
high school students; (3) an individual certified as a regular
education teacher, regardless of whether that individual is currently
working with the child; and (4) for children who are receiving only
speech-language services, a regular education teacher need not
participate.
Commenters also requested that the regulations be clarified to
state that school officials will not be deemed to have predetermined
placement solely because a regular education teacher is not present at
an IEP meeting. In the event that a regular education teacher does not
attend, commenters asked if that regular education teacher would be
required to provide input regarding the regular curriculum, and, if so,
how this would be accomplished and documented.
Numerous commenters expressed concerns regarding confidentiality of
IEPs if regular education teachers who did not attend the meeting are
provided copies. Some commenters suggested that there be a central
location for all IEPs, and the regulation make explicit that there are
limitations on redisclosure of information in IEPs to others.
Discussion: Based on careful consideration of comments as well as
applicable statutory requirements, Sec. 300.344(a)(2) should be
retained in these final regulations, but additional clarification
should be provided in Appendix A and in Sec. 300.342(b) of these
regulations.
Section 614(d)(1)(B)(ii) of the Act specifies that the IEP team
must include ``at least one regular education teacher of such child (if
the child is, or may be, participating in the regular education
environment).'' This statutory provision therefore prescribes that for
any child who is, or may be participating in the regular educational
environment, that child's regular education teacher must be a member of
the child's IEP team. The child's regular education teacher's
membership on the IEP team is particularly important to meeting the
statutory requirement in section 614(d)(1)(A)(ii)(I) of the Act that
the IEP explain how the child's needs will be met so that the child can
be involved in and progress in the general curriculum.
In implementing the requirement for membership of a regular
education teacher on the IEP team, the public agency will determine
which teacher or teachers of the child will fulfill that function to
ensure participation of at least one regular education teacher in the
development, review, and revision of the child's IEP, to the extent
appropriate, in accordance with section 614(d)(3)(C) of the Act. (See
discussion of Sec. 300.346(d) of these regulations).
In addition, it would be highly beneficial to the education of
children with disabilities to ensure that those regular education
teachers and other service providers of the child who are not members
of the child's IEP team are informed about the contents of a child's
IEP to ensure that the IEP is appropriately implemented.
Whether the child's regular education teacher must be physically
present at an IEP meeting, and to what extent that individual must
participate in all phases of the IEP process, are matters that must (1)
be determined on a case-by-case basis by the public agency, the
parents, and other members of the IEP team, and (2) be based on a
variety of factors. This issue is discussed in more detail in a
question and answer contained in Appendix A to these final regulations.
Since the statutory language is incorporated into this regulation
verbatim, no changes should be made regarding the use of the term
``regular education teacher,'' or the statutory language regarding the
regular educational environment.
It is important to point out that the statute specifies that at
least one regular education teacher of the child is a member of the IEP
team. Therefore, the suggestions of commenters that other individuals
could participate in lieu of the child's regular education teacher as
the regular education teacher member of the child's IEP team should not
be adopted; however, as stated in the note to this section in the NPRM,
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 regular education teacher, the LEA
may designate which teacher or teachers of the child will participate
on the IEP team. While all regular education teachers of the child need
not attend the child's IEP meeting, their input should be sought,
regardless of whether they attend. In addition, each public agency must
ensure that (1) the child's IEP is accessible to each regular education
teacher (and to each special education teacher, related services
provider and other service provider) who is responsible for its
implementation, and (2) each of the child's teachers and providers is
informed of his or her specific responsibilities related to
implementing the child's IEP, and of the specific accommodations,
modifications, and supports that must be provided to the child in
accordance with the IEP. This provision is necessary to ensure proper
implementation of the child's IEP and the provision of FAPE to the
child. However, the mechanism that the public agency uses to inform
each teacher or provider of his or her responsibilities is left to the
discretion of the agency.
It is expected that the circumstances will be rare in which a
regular education teacher would not be required to be a member of the
child's IEP team. However, there may be situations in which a child is
placed in a separate school and participates only in meals, recess
periods, transportation, and extracurricular activities with
nondisabled children and is not otherwise participating in the regular
educational environment, and no change in that degree of participation
is anticipated during the next twelve months. In these instances, since
there would be no current or anticipated regular education teacher for
a child during the period of the IEP, it would not be necessary for a
regular education teacher to be a member of the child's IEP team.
No further clarification should be provided in response to
commenters' concerns about the potential for violation of requirements
regarding confidentiality of information if copies of a child's IEP are
distributed to regular education teachers or other school personnel who
did not attend the IEP meeting. These regulations contain
confidentiality requirements at Secs. 300.560-300.577 that are modeled
after those in the Family Educational Rights and Privacy Act of 1974
(FERPA), 20 U.S.C. Sec. 1232(g), which also applies to this program.
[[Page 12584]]
While FERPA does not protect the confidentiality of information in
general, it prohibits the improper disclosure of information from
education records and generally protects parents' and students' privacy
interests in ``education records.'' Records regarding an individual
student's disability maintained by an educational agency or institution
or by a party acting for the agency or institution are education
records under FERPA. Therefore, a child's IEP is an ``education
record'' which is subject to FERPA.
Under FERPA and Part B, the prior written consent of the student's
parent or of the eligible student must be obtained for disclosure of
personally identifiable information in education records, unless one of
the authorized exceptions to the prior written consent requirement is
applicable. (34 CFR 99.30 and 300.571 (a)(2) and (b)).
Under 34 CFR 99.31(a)(1), educational agencies or institutions,
under certain circumstances, may disclose personally identifiable
information in education records without prior written consent to
school officials with legitimate educational interests. Each
educational agency or institution must provide annual notification
regarding how it meets the requirements of FERPA. This annual
notification under FERPA must include a statement indicating that the
parent or eligible student has a right to consent to disclosure of
personally identifiable information, and the exception permitting
nonconsensual disclosures to school officials with legitimate
educational interests must be described.
The criteria for determining which parties are school officials and
what the agency or institution considers to be a legitimate educational
interest also must be specified in this annual notification. (34 CFR
99.7(a)(3)). Accordingly, an educational agency or institution may
disclose information from education records to teachers and other
school officials who meet the criteria set forth in the agency's or
institution's notice and must restrict access by other school employees
who do not fall within an exception, unless consent to the disclosures
is obtained. Although regular education teachers who fall within this
exception also may disclose education records to other school officials
with legitimate educational interests, those officials are subject to
the restrictions on redisclosure in 34 CFR 99.33.
Public agencies also may find it practical to store education
records in one central location to limit access to those individuals to
whom the agency or institution is permitted to disclose personally
identifiable information without prior consent.
Changes: Section 300.342(b) has been amended, consistent with the
above discussion.
Comment: Commenters requested that ``special education provider''
be defined and that clarification be provided to indicate when a
special education provider could attend an IEP meeting in lieu of a
special education teacher. Other commenters asked if a paraprofessional
could attend an IEP meeting in lieu of a special education teacher or
special education provider. Some commenters recommended that the
regulations clarify that it would not be permissible for a
paraprofessional to be substituted for a qualified special education
teacher or provider as an IEP team member.
Commenters also recommended clarification that parents should be
informed about the qualifications of the IEP team members and degree to
which the IEP is being implemented by what commenters referred to as
``non-qualified personnel.''
Discussion: Section 300.344(a)(3) of these final regulations
implements section 614(d)(1)(B)(iii) of the Act, which gives the public
agency the flexibility to determine whether the child's special
education teacher or special education provider should be a member of
the child's IEP team. The special education teacher or provider who is
a member of the child's IEP team should be the person who is, or will
be, responsible for implementing the IEP. For example, if the child's
disability is a speech impairment, the special education teacher or
special education provider could be the speech-language pathologist.
While there is no statutory requirement that public agencies inform
parents of the qualifications of members of the IEP team, there is
nothing in these regulations that would preclude public agencies from
providing parents with this type of information. Public agencies are
encouraged to grant reasonable requests from parents for such
information.
Changes: None.
Comment: Numerous commenters requested that language from Appendix
A about the public agency's ability to commit agency resources be added
to the regulation. Commenters emphasized that it was especially
important that the individual attending an IEP meeting in the capacity
of public agency representative must be an individual such as an LEA
administrator who is qualified to develop specially designed
instruction and have authority to make decisions regarding LEA
resources.
To give LEAs flexibility in their representation, some commenters
suggested that the public agency representative should be an individual
who can interpret the instructional implications of evaluation results
and may be a member previously described. Other commenters emphasized
that the requirement for participation of a public agency
representative could be burdensome for rural States, and recommended
that the regulations be clarified to indicate that IEP team members
could fulfill dual functions so that responsibility of the public
agency representative could be delegated to another team member.
Some commenters requested that the regulation be amended to provide
that if particular services are not available in the district, lack of
availability does not relieve the school district of its obligation
either to provide needed services to a disabled child, or to include
those services on a child's IEP.
Discussion: The three criteria enumerated in the statute at section
614(d)(1)(B)(iv) describing the representative of the public agency who
is a member of the IEP team are incorporated into Sec. 300.344(a)(4) of
these final regulations. The statute should not be read to prohibit the
public agency from designating another member of the IEP team to act as
the public agency representative, if that individual meets the
specified criteria for each role. Therefore, a new paragraph (d) should
be added to Sec. 300.344 regarding a public agency's authority to
designate another IEP team member as the public agency representative
member of the IEP team, so long as the criteria in Sec. 300.344(a)(4)
are satisfied.
Changes: Section 300.344 has been amended by adding a new paragraph
(d), which authorizes a public agency to designate another IEP team
member as the public agency representative, provided the criteria in
Sec. 300.344(a)(4) are satisfied.
Comment: Many commenters emphasized the need to link the IEP and
evaluation processes to ensure that participants on the IEP team were
knowledgeable about the deliberations during the evaluation process and
eligibility determination. Some commenters believed that the language
about interpretation of evaluation results needs to be modified to
specify that the individual in this capacity had contributed to the
evaluation process. Many commenters requested that the regulation
should specify that the initial IEP team must include a member of the
eligibility team who is qualified to interpret the instructional
implications
[[Page 12585]]
of the evaluation results. Some commenters favored having such an
individual present at all IEP meetings.
Discussion: Section 300.344(a)(5) essentially reflects the
statutory requirement at section 614(d)(1)(B)(v), which requires the
participation of an individual who is knowledgeable about the
instructional implications of evaluation results, who may be another
member of the IEP team. No further clarification should be provided
since the statute specifically affords public agencies the flexibility
to select another member of the IEP team to fulfill the requirement of
Sec. 300.344(a)(5), provided that individual is knowledgeable about the
instructional implications of evaluation results.
Although commenters requested that the regulation be amended to
require the participation of a member of the eligibility team who is
knowledgeable about evaluation results to fulfill the requirement of
Sec. 300.344(a)(5), there is no statutory authority to impose such a
requirement, either for initial or subsequent IEP meetings. However, it
is expected that public agencies will find it helpful to have members
of the eligibility team as IEP team members for initial and subsequent
meetings to develop a child's IEP.
Changes: None.
Comment: Numerous comments were received regarding the
participation of related services personnel at IEP meetings. Some
commenters believed that any time a child is receiving a related
service, or whenever a related service is reflected in the child's
goals and objectives, the relevant related services personnel must
attend the IEP meeting. Other commenters requested that the
clarification in Appendix A regarding related services personnel who
have special knowledge and expertise regarding the child be included in
the regulations as well.
Many commenters requested a regulatory change to specify that
related services personnel must attend IEP meetings, if appropriate,
and need not be invited by the LEA. Other commenters recommended that
to assist parents, clarification should be provided that related
services personnel and the parents always must be notified of the IEP
meeting whenever the child's need for a related service is being
discussed. Other commenters recommended that Sec. 300.344(a)(6) be
changed to other individuals with special knowledge and expertise
regarding the child, the child's disability and unique needs, and that
criteria for attending the IEP meeting should include persons who can
contribute to the quality of the final document.
Many commenters recommended that the regulations specify which
related services personnel must attend IEP meetings. Several commenters
recommended that IEP teams always must include school psychologists who
are knowledgeable about clinical testing administration, particularly
when evaluation results are being used to determine IEP goals, behavior
impedes learning, reevaluations are required or are being determined,
and functional behavioral assessments and reviews of behavioral
interventions are necessary.
A number of comments were received regarding making the school
nurse or other qualified provider of school health services a required
participant on the IEP team. Some commenters limited this
recommendation to situations in which the child has medical concerns or
specialized health needs, and urged the participation of these
individuals to the greatest extent practical, and when appropriate on
the IEP team.
Many commenters were concerned that paragraph (a)(6) of this
section was too restrictive, because it (1) could prevent parents from
bringing support personnel, representatives of PTIs and other parent
organizations, and other advocates to their child's IEP meetings, and
(2) could place an unreasonable burden on the parent to prove the
individual's ``special knowledge or expertise'' regarding their child.
Several commenters requested that the regulations list the
conditions under which speech-language pathologists and audiologists
will or may serve on the IEP team. Some commenters recommended that the
regulations be amended to make the participation of the speech-language
pathologist at the IEP meeting mandatory, while other commenters
suggested that the number of individuals required to be on IEP teams
for students for whom speech is the only special education service was
excessive.
Some commenters recommended that the regulations specify that a
person knowledgeable about the language and communication needs of deaf
children must be present for their IEP meetings. Numerous commenters
favored including in the regulation the portion of the note regarding
the attendance of persons knowledgeable about positive behavior
interventions and strategies at IEP meetings, if the student's behavior
impedes the learning of the student or others. Some of these commenters
recommended that the reference be changed to a person trained in the
design and use of effective positive behavior support strategies.
Several comments were received regarding an attorney's
participation at IEP meetings, and a recommendation was made that the
discussion regarding the attorney's role at IEP meetings in Appendix A
should be incorporated into the regulations. Another commenter
recommended that the regulation should state that attorneys should
never be in attendance at IEP meetings unless such a meeting is
convened as a result of an administrative proceeding or judicial
review. Other commenters suggested that adults with disabilities should
be required members of the IEP team.
Discussion: Section 300.344(a)(6) adopts verbatim the statutory
language at section 614(d)(1)(B)(vi) of the Act. Under this section,
parents and public agencies have the discretion to bring to IEP
meetings as IEP team members other individuals who have knowledge or
special expertise regarding the child, including related services
personnel, as appropriate. Under this statutory provision, the parent's
and public agency's right to bring other individuals to the IEP meeting
at their discretion must be exercised in a manner that ensures that all
members of the IEP team have the knowledge or special expertise
regarding the child to contribute meaningfully to the IEP team.
Individuals with knowledge about the child could include neighbors
or friends of the parents, or advocates, who, in the judgement of the
parents, are able to advise or assist them at the meeting. Individuals
with special expertise could include professionals in evaluation or
special education and related services who have been directly involved
with the child, as well as those who do not know the child personally,
but who have expertise in (for example) an instructional method or
procedure, or in the provision of a related service that the parents or
agency believe can be of assistance in developing an appropriate IEP
for the child.
There is no need to make the participation of school nurses on the
IEP team mandatory, as requested by commenters. As providers of the
related service ``school health services,'' their participation would
be subject to the requirements of this section, and they could be
members of the IEP team at the discretion of the parents or public
agency, provided that they possess the requisite knowledge and special
expertise regarding the child. The same is true of providers of speech-
language and audiology services and individuals knowledgeable about the
communication needs of students who are deaf or hard of hearing. In the
case of a child whose behavior impedes the
[[Page 12586]]
learning of the child or that of others, the public agency is
encouraged to have a person with special expertise in positive behavior
interventions and strategies on the IEP team at the IEP meeting.
Individuals such as representatives of PTIs may, at the parent's
discretion, serve as members of the IEP team, provided they possess the
requisite knowledge or expertise regarding the child.
Regarding attorneys participation at IEP meetings, it is important
to note that a new statutory provision at section 615(i)(3)(D)(ii)
provides that attorneys' fees may not be awarded for an IEP team
meeting unless the meeting is convened as the result of an
administrative proceeding or judicial action, or at the discretion of
the State, for a mediation conducted prior to initiating a due process
hearing under the Act. Issues raised related to attorneys' fees
regarding IEP meetings are also addressed under Sec. 300.513 of this
attachment and in Appendix A.
It is not necessary to require the participation of adults with
disabilities on the IEP team. As is true of other related services
personnel, as well as other individuals selected as IEP team members at
the parent's or agency's discretion, an adult with a disability could
be a member of an IEP team at the parent's or public agency's
discretion if that individual possesses the requisite knowledge and
expertise regarding the child.
Changes: A new Sec. 300.344(c) has been added to clarify that ``The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section shall be made by the
parents or public agency who invited the individual to be a member of
the IEP team.''
Comment: Commenters recommended that the word ``appropriate'' be
deleted from Sec. 300.344(a)(7), since a student always should be
permitted to be at his or her IEP meeting, and that students eighteen
years of age and older always should be considered members of the IEP
team.
Commenters also recommended that language be added to the
regulation to clarify that students under age 14 be included on the IEP
team on an as-appropriate basis, and that students 14 and older be
included as members of the team. Other commenters recommended
clarification that the decision as to when it is ``appropriate'' for a
child to attend his or her IEP meeting rests with the child and his or
her parents.
Other commenters expressed a concern that students could be coerced
into accepting instructional plans and that the IEP provisions should
be amended to require that an advocate employed by the LEA must be
present at every consultation involving teachers and students regarding
IEP or implementation.
Discussion: Section 300.344(a)(7) of these regulations adopts
verbatim the statutory requirement at section 614(d)(1)(B)(vii) of the
Act regarding the child's participation as a member of his or her IEP
team, as appropriate. Consistent with this statutory requirement,
public agencies must invite students to attend IEP meetings in
appropriate situations.
No regulatory change deleting the reference to ``if appropriate''
should be made, as requested by commenters, since to do so would alter
the explicit statutory provision limiting the student's participation
in IEP meetings to appropriate situations. However, if a purpose of the
meeting will be the consideration of a student's transition services
needs or needed transition services or both, Sec. 300.344(b)(1) of
these regulations would provide that the student must be invited to
attend, because it is important to afford students an opportunity to
participate and have a voice in planning for their transition from
school to post-school activities, including postsecondary education and
employment.
The change requested by commenters regarding the participation of a
student over eighteen years of age as a member of their IEP team should
not be made. Even if, under section 615(m) of the Act, all rights
accorded parents under Part B transfer to students who have reached the
age of majority under State law, ages of majority differ among States,
and not all States regard age eighteen as the age at which parental
rights transfer to children. In addition, under section 615(m) of the
Act, there are circumstances in which parental rights accorded under
Part B may not be transferred, even in a State that transfers rights at
the State age of majority.
No change should be made regarding the commenters' concerns that
students would be coerced into accepting instructional plans. It would
be more appropriate to address these implementation issues at the State
and local levels.
Changes: None.
Comment: Commenters requested that this section be revised to
require SEAs and LEAs to enter into interagency agreements with non-
school agencies that include participation by non-school agencies in
transition meetings. Other suggestions made by commenters were that a
statement be added to the regulations to require the attendance of an
advocate or staff member from an independent living center and a
transition coordinator at an IEP meeting whenever transition services
are discussed. Other commenters requested additional information about
boundaries and parameters for enlisting the involvement of other agency
personnel in transition meetings.
Some commenters suggested that not only the public agency should
have the ability to invite representatives of other agencies, but so
should the parents. If a student is unable to attend an IEP meeting,
other commenters asked what steps will be taken to ensure that the
student's preferences and interests are being considered, especially if
transition services are being discussed.
Discussion: Section 300.344(b)(1) of these regulations would
require that a student of any age be invited to an IEP meeting if a
purpose of the meeting is to meet a requirement of Sec. 300.347(b)(1)
(transition services) of these regulations. If the student cannot
attend, the public agency must take whatever steps are necessary to
ensure that the student's preferences and interests are being
considered. No further clarification should be provided since these
steps necessarily will vary based on a variety of factors, including
the needs of the student.
There is no need for clarification regarding interagency
agreements, since Sec. 300.142 of these regulations already contains a
requirement that agreements be in place between educational and
noneducational public agencies to govern the provision and financing of
all required services under these regulations, including transition
services. There is no need to require the participation of advocates
and transition coordinators at IEP meetings at which transition
services needs or the statement of needed transition services is being
discussed.
Changes: None.
Parent participation (Sec. 300.345)
Comment: A number of comments were received on the notice
requirement in Sec. 300.345(a), including comments requesting that (1)
the regulations require that the notice be in a format and in language
that is usable by parents; (2) because of the prior written notice
requirement in the statute, public agencies should not have the option
to provide verbal notice (i.e, by telephone); (3) LEAs generally should
not be allowed to reject a parent's proposal for a time and place of
the meeting, and meetings should be held at times that accommodate
parents' work schedules; (4) the term ``early enough'' in
Sec. 300.345(a)(1) be replaced with a
[[Page 12587]]
specific number of days; and (5) a draft IEP be given to parents not
less than 10 days before the meeting.
Discussion: The ``notice'' requirement in Sec. 300.345(a) of these
final regulations implements provisions under prior regulations that
were not changed by the IDEA Amendments of 1997, and, therefore, does
not need to be revised with respect to the comments received. This
requirement is a long-standing provision that is intended mainly to
inform parents about the IEP meeting and provide them with relevant
information about it (e.g., the purpose, time, and place of the
meeting, and who will be in attendance). The requirement is not the
same as the prior notice provision in Sec. 300.503 (which requires
written notice to parents whenever the public agency proposes, or
refuses, to initiate or change the identification, evaluation, or
educational placement of the child or the provision of FAPE to the
child).
In implementing Sec. 300.345(a), some LEAs elect to contact parents
by telephone or to send less formal notes about IEP meeting
arrangements than would be required under Sec. 300.503. These
approaches are consistent with the long-standing regulatory
requirement. With respect to Sec. 300.345(a)(1) (i.e., notifying
parents early enough of the meeting to ensure that they will have an
opportunity to attend), there is no information to justify replacing
the term ``early enough'' with a specified timeline. Because
communicating with parents about IEP meeting arrangements is generally
a less formal process than the procedures required by certain other
provisions in this part, the use of timelines could have a negative
effect.
The key factor in Sec. 300.345(a) is that public agencies
effectively communicate with parents about the up-coming IEP meeting,
and attempt to arrange a mutually agreed upon time and place for the
meeting. This process should accommodate the parents' work schedules to
ensure that one or both parents are afforded the opportunity to
participate.
The commenter's request that the public agency provide parents with
a copy of the IEP 10 days before the meeting is inconsistent with the
requirements of this part, which requires that the IEP be developed at
the IEP meeting. However, to the extent that preliminary information is
available in the agency that may affect discussions and decisions at
the meeting related to their child's IEP, it is expected that the
information would be provided to the parents sufficiently in advance of
the meeting so that they can participate meaningfully in those
discussions and decisions on an equal footing with other members of the
IEP team. It is not necessary to set out a specific timeline for this
information to be provided.
Changes: None.
Comment: A number of comments were received requesting that the
first sentence of the note following Sec. 300.345 (related to informing
parents of their right to bring other people to the IEP meeting) be
added to the regulation, and specifically to Sec. 300.345(b) to ensure
that this would be a specific requirement. Other commenters recommended
deleting the note, stating that it is misleading, and will confuse
parents and school staff and lead to unneeded difficulties.
Discussion: It is important for parents of children with
disabilities to be aware that, under the provisions of
Sec. 300.344(a)(6) and (c), other individuals may be included on their
child's IEP team, provided that the individuals have knowledge or
special expertise regarding the child (see discussion under
Sec. 300.344 of this analysis). To ensure that parents know about those
provisions, public agencies should be required to include information
about the provisions in the notice of IEP meetings specified under
Sec. 300.345(a)(1) and (b)(1)(ii).
Changes: Section 300.345(b) has been amended to provide that the
notice required under Sec. 300.345(b) must ``Inform the parents of the
provisions in Sec. 300.344(a)(6) and (c) (relating to the participation
of other individuals on the IEP team who have knowledge or special
expertise about the child).''
Comment: A few comments were received on Sec. 300.345(d) (related
to holding an IEP meeting without the parents if the LEA is unable to
convince them to participate). The commenters stated that the term
``convince'' should be replaced because it connotes an adversarial
situation between the LEA and the parents, and suggested other terms.
Some commenters requested that Sec. 300.345(d)(3) (related to visits to
a parent's home or place of employment) be deleted, stating (for
example) that such a provision is overly intrusive, invasive, and could
anger employers, and could cause some parents to be negatively impacted
or insulted; and that the remaining methods in Sec. 300.345(d)(3) are
sufficient.
Another commenter suggested replacing the language in this
paragraph with language that would require LEAs to demonstrate what
they have done in attempting to involve parents.
Discussion: Section 300.345(d) is a longstanding provision that is
intended to enable a public agency to proceed to conduct an IEP meeting
if neither parent elects to attend, after repeated attempts by the
public agency to ensure their participation. In administering and
monitoring the provisions of this part over the past 22 years, few, if
any, questions or concerns have been identified, or raised, with
respect to the implementation of Sec. 300.345(d), and there is no
information to justify amending the paragraph at this time, either with
respect to the word ``convince'' or the reference to maintaining
records of efforts to involve the parents.
The regulation makes it clear that paragraphs (d)(1) through (d)(3)
of this section are examples of what a public agency ``may do'' to
maintain a record of its attempts to arrange a mutually agreed on time
and place for conducting an IEP meeting. Public agencies are not
required to go to the parent's place of employment to attempt to seek
the parents' involvement in their child's IEP; and it is expected that
a public agency would pursue that option very judiciously. However,
there may be situations in which the agency believes that it is
important to do so because it is otherwise unable to contact the
parent. Implementation of this specific provision is left to the
discretion of each public agency. In any case in which the agency is
unable to contact the parents or otherwise ensure their participation,
Sec. 300.345(d) sets out options that the agency may elect to follow.
Changes: None.
Comment: Several commenters recommended that Sec. 300.345(f) be
amended to delete the term ``on request'' from the statement, so that
parents are given a copy of the IEP without having to ask for it. One
commenter requested that the copy be given within 5 days of the
meeting.
Discussion: The new statute has given parents a more active voice
in the education of their children with disabilities than existed under
prior law. Because of the role parents play in the development, review,
and revision of their child's IEP, it is appropriate to amend the
regulation to require that each public agency must give the parents a
copy of their child's IEP at no cost to the parents.
Changes: Section 300.345(f) has been amended consistent with the
above discussion.
Development, Review, and Revision of IEP (Sec. 300.346)
Comment: A few comments were received on Sec. 300.346(a)(1).
Commenters recommended that (1) examples be added related to the
strengths of the child and the concerns of the parents for
[[Page 12588]]
enhancing the child's education; (2) the IEP team also consider the
child's performance results on any State or district-wide assessments,
in addition to the results of the initial or most recent evaluation of
the child; and (3) the term ``consider'' be replaced with ``examine and
address;'' or with ``incorporate,'' to ensure that the IEP team
incorporates the listed items into a child's IEP, rather than simply
considering them.
While some commenters recommended that Note 1 be retained, other
commenters recommended that the clarification in the note either be
included in the text of the regulation or deleted in its entirety. One
of the concerns expressed by commenters was that in considering special
factors, the statement in Note 1 concerning review of valid information
data, as appropriate, sets up a demand of separate or more expansive
evaluation procedures for special consideration.
Discussion: Section 300.346(a)(1) adopts the statutory requirements
related to considering the strengths of the child and the concerns of
the parents. No examples regarding this provision have been
incorporated into these final regulations, since these determinations
would differ for each student, based on a variety of unique factors in
light of the abilities and needs of the parents and children involved.
Because the requirement to ``consider'' the strengths of the child and
the concerns of the parent, as well as the special factors, is
statutory, a word other than ``consider'' should not be substituted.
The requirements in paragraph (a)(1) and (a)(2) of this section impose
an affirmative obligation on the IEP team to ensure that the child's
IEP reflects those considerations.
Paragraph (c) of this section also makes clear that if the IEP team
determines, through consideration of special factors, that a child
requires a particular service, intervention, or program modification, a
statement to this effect must be included in the child's IEP.
Therefore, no further clarification is necessary. Because the
requirements in Sec. 300.346(a) are evident from the text of this
regulation, there is no need to retain Note 1 to this section of the
NPRM in these final regulations.
Section 300.346(a)(1)(ii) also requires consideration of the
results of the initial or most recent evaluation of the child, and this
consideration must include, as appropriate, a review of valid
evaluation data and the observed needs of the child resulting from the
evaluation process. Because Pub. L. 105-17 strengthens collaboration
between the IEP and evaluation processes, it is expected that this
consideration will occur, as appropriate, through examination of
existing evaluation data. Therefore, the commenters' concern that
separate or expansive evaluation procedures would be required is not
warranted.
The commenters' suggestion regarding the IEP team's consideration
of the child's performance results on any State and district-wide
assessment programs is consistent with the emphasis in the Act on the
importance of ensuring that children with disabilities participate in
the general curriculum and are expected to meet high achievement
standards. Effective IEP development is central to helping these
children meet these high standards. Section 612(a)(17) of the Act and
Sec. 300.138 of these regulations require, as conditions for receipt of
IDEA funds, that States ensure that children with disabilities are
included in general State and district-wide assessment programs, with
appropriate accommodations where necessary, and must report the
performance results of these children on such assessments. Therefore,
Sec. 300.346(a)(1) should be amended by adding paragraph (iii) to
require that in considering the results of the initial or most recent
evaluation of the child, the IEP team also consider, as appropriate,
the results of the child's performance on any general State or
district-wide assessment programs.
Changes: Section 300.346(a)(1) has been amended by adding paragraph
(iii) to provide that, in considering the child's initial or most
recent evaluation, the IEP team also consider, as appropriate, the
results of the child's performance on any general State or district-
wide assessment programs. Note 1 to this section of the NPRM has been
removed.
Comment: Numerous comments were received on Sec. 300.346(a)(2)
(i.e., consideration of special factors). With respect to the factor
under paragraph (a)(2)(i), in the case of a child whose behavior
impedes his or her learning or that of others, commenters requested
that (1) the term ``if appropriate'' be deleted because it will be used
only for those children exhibiting dangerous behavior; (2) a note be
added to state that consideration should be given to whether the
behavior that impedes learning is due to frustration over a lack of
services; (3) the IEP team also consider behavior exhibited both in and
outside the school, and behavior that must be addressed to sustain in-
school learning; (4) aversive behavior management strategies are banned
under these regulations; (5) a child not be subjected to physical
restraints or interventions unless agreed to by the child's parent and
teacher; and (6) a plan between the parent and teacher be required to
specify what disciplinary actions would occur if a child violated his
or her behavioral intervention plan.
Discussion: Paragraph (a)(2) of this section (relating to
consideration of special factors) implements the new statutory
requirement in section 614(d)(3)(B) of the Act. It should be emphasized
that, under prior law, IEP teams were required to consider these
special factors in situations where such consideration was necessary to
ensure the provision of FAPE to a particular child with a disability.
Therefore, this new statutory provision makes explicit what was
inherent in each child's entitlement to FAPE under prior law.
Paragraph (a)(2)(i) of this section adopts the statutory
requirement at section 614(d)(3)(B)(i) of the Act, that, in the case of
a child whose behavior impedes his or her learning or that of others,
the IEP team consider, if appropriate, strategies, including positive
behavioral interventions, strategies, and supports to address that
behavior. The commenters' concern that the retention of the words ``if
appropriate'' would mean that the provision would be applied only in
situations where a child exhibited dangerous behavior seems to ignore
that school officials have powerful incentives to implement positive
behavioral interventions, strategies and supports whenever behavior
interferes with the important teaching and learning activities of
school. Since the word ``strategies'' is used two times in the
statutory provision, contrary to commenters' suggestion, the word
strategies should not be deleted the second time it appears in this
section.
Although the commenters' suggestions that behavior may be exhibited
that impedes learning due to a frustration over lack of services and
that the IEP team needs to examine in and out-of-school behavior to
develop interventions to sustain learning are extremely important, no
clarification should be provided in these regulations, to avoid
overregulation in this area. It would be more appropriate to provide
technical assistance on Sec. 300.346(a)(2)(i) on an as needed basis,
instead of developing general rules to which numerous exceptions would
most likely apply. The Department funds a number of research efforts in
this area, as well as technical assistance providers. Of course, in
appropriate cases it might be helpful to all parties for the IEP to
identify the circumstances or behaviors of others that may result in
inappropriate behaviors by the child.
Regarding what behavioral interventions and strategies can be used,
and whether the use of aversive
[[Page 12589]]
behavioral management strategies is prohibited under these regulations,
the needs of the individual child are of paramount importance in
determining the behavioral management strategies that are appropriate
for inclusion in the child's IEP. In making these determinations, the
primary focus must be on ensuring that the behavioral management
strategies in the child's IEP reflect the Act's requirement for the use
of positive behavioral interventions and strategies to address the
behavior that impedes the learning of the child or that of other
children.
It would not be appropriate for these regulations to require a
specific plan between the teacher and parent, as described by
commenters, that would specify consequences for a student's failure to
comply with a behavioral intervention plan. A child's need for this
type of plan, and the specific elements of that plan, would vary
depending on the child and the behavior involved. Of course, in
appropriate circumstances, the IEP team which includes the child's
parents, might agree upon a behavioral intervention plan that included
specific regular or alternative disciplinary measures that would result
from particular infractions of school rules.
Parents who disagree with the behavioral interventions and
strategies included in their child's IEP can utilize the Act's
procedural safeguard requirements, which afford them the right to
request an impartial due process hearing under Sec. 300.507 and the
option to use mediation under Sec. 300.506 of these regulations.
Changes: None.
Comment: Numerous comments were received on Sec. 300.346(a)(2)(ii)
and Note 3 (factors related to a child with limited English proficiency
(LEP). Commenters recommended changes in the regulation, such as: (1)
replacing ``IEP'' with ``disability'' in Sec. 300.346(a)(2)(ii); (2)
clarifying that the consideration include how the child's level of
English language proficiency affects the provision of special education
and related services needed to receive FAPE, and how the child will be
provided meaningful and full participation in the general curriculum,
including through the use of alternative language services; (3)
clarifying that special education and related services be provided in
the language identified by the school district, with appropriate
support services; (4) clarifying whether English language tutoring is a
related service that must be included in a child's IEP or part of the
general curriculum; and (5) recognizing that second language
acquisition might take precedence over the general curriculum.
A few commenters expressed support for Note 3, stating (for
example) that it is helpful in recognizing that special education
services may need to be provided in a language other than English.
Other commenters requested that Note 3 be moved to the text of the
regulation, or deleted in its entirety since it expands
responsibilities under these regulations to requirements of Federal
laws other than Part B.
Discussion: Section 300.346(a)(2)(ii) of these regulations adopts
verbatim the statutory requirement at section 614(d)(3)(B)(ii) of the
Act, that in the case of a child with limited English proficiency, the
IEP team consider the language needs of the child as such needs relate
to the child's IEP. Modifications to this paragraph that would involve
changes to statutory language should not be made.
Issues such as the extent to which a LEP child with a disability
receives instruction in English or the child's native language, the
extent to which a LEP child with a disability can participate in the
general curriculum, or whether English language tutoring is a service
that must be included in a child's IEP, are determinations that must be
made on an individual basis by the members of a child's IEP team.
In light of the general decision to remove all notes, Note 3 has
been removed. However, in developing an IEP for a LEP child with a
disability, it is particularly important that the IEP team consider how
the child's level of English language proficiency affects the special
education and related services that the child needs in order to receive
FAPE, consistent with Sec. 300.346(a)(2)(ii) and (c). Under Title VI of
the Civil Rights Act of 1964, school districts are required to provide
LEP children with alternative language services to enable them to
acquire proficiency in English and to provide them with meaningful
access to the content of the educational curriculum that is available
to all students, including special education and related services.
A LEP child 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 child's educational program. For a LEP child 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.
Changes: Note 3 has been removed.
Comment: With respect to the special factor considered for a child
who is blind or visually impaired, commenters requested that the
regulation clarify that (1) Braille materials must be provided to
students who are blind or visually impaired at the same time that their
sighted peers receive the materials; (2) a child may not be denied
Braille services on the basis that modified reading and writing media,
other than Braille, are being provided; (3) when there is a
disagreement about the use of Braille, Braille instruction must be
provided until lawful procedures have culminated in a final decision;
and (4) any child who meets the legal definition of blindness should be
taught Braille.
Commenters also stated that other options besides Braille may be
needed for certain students, as described in the ``Policy Guidance on
Educating Blind and Visually Impaired Students'' (OSEP 96-4, dated 11-
3-95), and requested that a note be added that includes much of the
content of that document, or that a reference be made to that policy
guidance paralleling Note 2 relating to students who are deaf or hard
of hearing.
Discussion: Section 300.346(a)(2)(iii) of these final regulations
adopts verbatim the statutory language at section 614(d)(3)(B)(iii) of
the Act. Under this requirement, in the case of a child who is blind or
visually impaired, the IEP team must make provision for instruction in
Braille and the use of Braille, unless the IEP team determines, after
the evaluations described in the statutory provision, that instruction
in Braille or the use of Braille is not appropriate for the child.
Changes to statutory language requested by commenters should not be
made.
Contrary to a suggestion of commenters, a regulatory provision
making it mandatory for Braille to be taught to every child who is
legally blind would contravene the individually-oriented focus of the
Act, as well as the statutory requirement that the IEP team must make
individual determinations for each child who is blind or visually
impaired based on relevant evaluation data. As explained in OSEP
Memorandum 96-4, Policy Guidance on Educating Blind and Visually
Impaired Students, the IEP team's determination as to whether a child
who is blind or visually impaired receives instruction in Braille or
the use of Braille cannot be based on factors such as availability of
alternative reading media, such as large print, recorded materials, or
computers with speech output.
Additionally, although these regulations do not specify that a
child
[[Page 12590]]
for whom Braille instruction is determined appropriate must receive
Braille materials at the same time they are provided to their sighted
peers, once the IEP team determines that a child requires instruction
in Braille, such instruction, along with other aspects of the child's
IEP, must be implemented as soon as possible following the child's IEP
meeting, and in any case, without undue delay. If there is disagreement
between the parents and school district over what constitutes an
appropriate program for a child who is blind or visually impaired, when
the IEP team has determined that instruction in Braille would not be
appropriate for the child, the parents of the child would have the
right to request a due process hearing and mediation. In addition,
parents have available to them mediation and complaint resolution by
which they can file a complaint with the SEA under the State complaint
procedures in these regulations.
Although the LEA would not be required to provide instruction in
Braille while the dispute is being resolved, the LEA would be required,
both by Part B and Section 504, to ensure that the child receives
instructional materials in an alternative medium to enable the child to
participate in the LEA's program.
The OSEP Policy Guidance on Educating Blind and Visually Impaired
students should not be included in these final regulations since many
of the statutory and regulatory provisions cited in the policy guidance
have been replaced by the requirements of Pub. L. 105-17. In some
important respects, particularly with regard to consideration of
instruction in Braille, Pub. L. 105-17 substantially revised the
requirements of prior law. It also should be pointed out that Note 2 to
this section of the NPRM, which contained a reference to corresponding
policy guidance regarding educating deaf students, is being removed as
a note, and pertinent references to that policy guidance are
incorporated into the discussion of Sec. 300.346(a)(2)(iv).
Changes: None.
Comment: With respect to considering the communication needs of the
child and factors related to a child who is deaf or hard of hearing,
commenters expressed support for Note 2 (related to policy guidance on
Deaf Students Education Services that was published in the Federal
Register in 1992), and requested that the entire statement be published
as an attachment to these regulations. Some commenters favored deleting
Note 2 because they objected to citation of policy guidance documents
in the regulations without following applicable procedures in section
607(b) and (c) of the Act.
Commenters recommended adding to the regulations proposed
definitions of the terms ``direct communication,'' ``the child's
language,'' and ``full range of needs,'' or adding clarifying language
relating to those terms (e.g., that the child's primary language could
be American Sign Language, and that the full range of needs includes
social, emotional, and cultural needs).
Commenters also recommended (1) requiring that counselors of the
deaf assess each deaf child's language and speech communication in
spontaneous conversation at age 5, to determine whether the child has
the skill to stay in an oral program or should be transferred to a
program that uses sign language; (2) that the regulations make it clear
that the communication needs of a deaf child are fundamental to the LRE
decision; (3) that many deaf children need to be in an environment
where they can communicate directly through a visual mode with those
around them; and (4) that the IEP team document that it considered the
language and communication needs of a hard of hearing child and how
such needs will be met in the proposed placement.
A few commenters requested that children with cochlear implants be
included with other deaf children in the structure of educational
placements and language and communication needs, and that the IEP state
what will be done to assist the child to best utilize the hearing
acquired.
Some commenters requested adding children with deafness and
blindness because they also have communication needs and require this
consideration.
Discussion: Section 300.346(a)(2)(iv) of these regulations adopts
verbatim the statutory requirement in section 614(d)(3)(B)(iv) of the
Act that the IEP team consider the communication needs of the child,
and, in the case of a child who is deaf or hard of hearing, those
additional special factors relating to the child's language and
communication needs. Additional guidance in the form of changes to the
regulations requested by commenters should not be provided.
In the interest of not using notes in these final regulations, Note
2 to this section of the NPRM should be removed. It is important to
emphasize that this policy guidance on Deaf Students Educational
Services merely interprets existing statutory and regulatory
requirements, and does not impose new requirements on the public.
Nevertheless, LEAs are not relieved of their responsibilities to ensure
that paragraph (a)(2)(iv) of this section is implemented consistent
with the published policy guidance on Deaf Students Education Services,
and that the full range of communication and related needs of deaf and
hard of hearing students are appropriately addressed in evaluation,
IEP, and placement decisions under these regulations.
The Senate and House Committee Reports on Pub. L. 105-17 reinforce
this principle in their statements that ``the IEP team should implement
the [new statutory] 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.''
S. Rep. No. 105-17, p. 25., H.R. Rep. No. 105-95, p. 104 (1997). The
Department fully expects LEAs to ensure that Sec. 300.346(a)(2)(iv) of
these regulations is implemented consistent with these statements.
Changes: Note 2 has been removed.
Comment: With respect to considering whether a child needs
assistive technology (AT), some commenters stated that if AT devices or
services are recommended and not provided, the IEP must include a
statement to that effect and the basis on which the determination was
made. Other commenters stated that having to document that such devices
and services were considered is an unnecessary paperwork burden.
Commenters also recommended (1) requiring that decisions about the
need for AT are made early enough so that they are in effect by the
beginning of the school year; (2) clarifying that if an AT device is
needed, the child has the right to take it home; (3) adding
clarification of liability issues (e.g., where a child uses a family
owned device at school and other waiver of liability issues); and (4)
adding a note that AT can have a significantly positive effect on the
attainment of annual goals and participation in the general curriculum.
Discussion: Section 300.346(a)(2)(v) of these regulations adopts
verbatim the new statutory requirement at section 614(d)(b)(3)(v) of
the Act, making it mandatory for the IEP team to consider each child's
AT needs. This statutory provision reinforces the requirement in
Sec. 300.308 of these regulations that if an IEP team determines that a
disabled child requires an AT device or service in order to receive
FAPE, the required AT must be provided at no cost to the parents. In
all instances, the IEP team must determine whether an individual
disabled child should receive AT, and if so, the nature and extent of
AT provided to the child.
[[Page 12591]]
Because in many situations, parents were reporting that LEAs were
not properly considering their children's AT needs on an individual
basis, this new provision should ensure that each child's IEP team
considers the child's need for AT. Since IEP teams must consider each
child's need for AT on an individual basis, determinations regarding
the provision of AT must be made when the child's IEP for the upcoming
school year is finalized so that the AT can be implemented with that
IEP at the beginning of the next school year.
In the interest of not adding paperwork burdens to these
regulations, there is no additional requirement that LEAs document that
the IEP team considered a child's AT needs, or considered a child's AT
needs and determined that AT not be provided to the child. It is not
necessary to add the clarification regarding the importance of
reflecting a child's AT needs in IEP goals and objectives or in issues
relating to the child's participation in the general curriculum.
All of needs identified through consideration of the special
factors contained in paragraph (a)(2) of this section must be reflected
in the contents of the child's IEP, including, as appropriate, the
instructional program and services provided to the child, the annual
goals, and the child's involvement in and progress in the general
curriculum. In addition, individual consideration of a child's AT needs
is essential to ensuring that the child's unique needs arising from his
or her disability are appropriately addressed so that the child can be
involved in and progress in the general curriculum.
Issues regarding whether AT devices or services can be used at
home, and issues regarding liability for family-owned AT devices used
at school are addressed either in discussions of Secs. 300.5-300.6 or
300.308 of the attachment, and, as appropriate, are reflected in
changes to those regulations.
Changes: None.
Comment: Commenters stated that, in light of the fact that IEP
teams must consider special factors in five specific instances, and are
responsible for significant decisions as a result of changes made by
Pub. L. 105-17, a new paragraph (a)(3) should be added to Sec. 300.346
to provide specific guidance to IEP teams (e.g., requiring that the
teams draw upon information from a variety of sources, including
teacher observation, input from parents, and other specified
information). Other commenters requested that a new paragraph be added
to Sec. 300.346 to ensure that all children with disabilities receive
the services in their IEPs and retain the rights and privileges
included under the Act.
Discussion: While the concerns expressed by these commenters are
extremely important, no regulatory changes should be made.
Consideration of the five specific factors outlined in the statute and
these regulations, of necessity, will require consideration of
information from a variety of sources, and Sec. 300.346(c) of these
regulations also requires that such consideration be reflected in the
contents of a child's IEP. In addition, it is not necessary to add a
provision to clarify that all children with disabilities must receive
services listed in their IEPs. This requirement is already reflected in
Sec. 300.350 of these regulations, which provides that each child with
a disability must receive special education and related services in
accordance with an IEP.
Changes: None.
Comment: A few comments were received on Sec. 300.346(d)(2)
(relating to the determination of supplementary aids and services,
program modifications, and supports for school personnel, consistent
with Sec. 300.347(a)(3)). The commenters stated that (1) the term
``supports for school personnel'' focuses the need from the student to
the staff, and recommended adding a note to narrow this provision,
because it could be interpreted broadly by staff and have a negative
effect on resources that are needed to directly meet student needs; (2)
the provision may be used by teachers to block admission of children
with disabilities to their class by demanding unreasonable supports;
(3) additional guidance be provided, since this is the first time that
the IEP has addressed needs not specific to the child; and (4) language
be added indicating that the LEA and not the teacher should be the
focus of responsibility in the provision of such supports.
Discussion: With respect to Sec. 300.346(d)(2), including the
statement relating to supports for school personnel, it is critical
that those determinations are ``consistent with Sec. 300.347(a)(3).''
Section 300.347(a)(3) makes clear that the focus of the supports is to
assist the child to advance appropriately toward (for example)
attaining the annual goals, and to be involved in and progress in the
general education curriculum. Therefore, while certain supports for
school staff may be provided (such as specific training in the
effective integration of children with disabilities in regular
classes), the ultimate focus of those supports to school personnel is
to ensure the provision of FAPE to children with disabilities under
Part B, their integration with nondisabled peers and their
participation and involvement in the general curriculum, as
appropriate. Consistent with the Act's emphasis on ensuring the
provision of FAPE to children with disabilities, and, to the maximum
extent appropriate, educating those children in regular classes with
nondisabled children with appropriate supplementary aids and services,
it is critical that at least one regular education teacher of the child
be a member of the IEP team and provide input on appropriate
supplementary aids and services, including program modifications and
supports for school personnel. It also is essential that the child's
teachers and other service providers who are not members of the IEP
team are informed about the contents of the child's IEP, in whatever
manner deemed appropriate by the public agency, so that the IEP is
properly implemented by all school personnel.
Changes: None.
Content of IEP (Sec. 300.347)
Comment: A number of general comments were received relating to
Sec. 300.347. Some commenters expressed concerns that the IEP
requirements were burdensome. A commenter requested that a sample IEP
be provided in order to cut down on paperwork and keep the IEP to the
essentials of Federal and State law. Commenters also (1) requested that
a provision addressing assistive technology be added, as it is often
not provided, and (2) stated that Sec. 300.347 should contain a
requirement that the IEP document be in a user-friendly format and
written in language that can be understood by parents, and that the
mandatory contents of IEPs include ESY services, if a child is eligible
for such services, and necessary services that will be provided by
another agency and the name of the provider.
Other commenters requested (1) documenting how special factors were
considered; (2) clarifying the role of the regular education teacher in
IEPs of children who are in self-contained, restrictive placement
settings, or private placements; (3) providing the necessary
flexibility to change how and where services are delivered to meet the
child's changing needs; and (4) forbidding the practice of LEAs
providing interim plans which promise that a full IEP will be developed
at a later date--a device used by LEAs to avoid specifying what they
will do for a child, so that the IEP can be discussed
[[Page 12592]]
and litigated (if necessary) well before the start of a school year.
Discussion: In developing these final regulations, efforts have
been made to ensure that the regulatory requirements related to the
content of IEPs are consistent with the IDEA Amendments of 1997, and
that no additional burden is added. The Department will explore the
extent to which a sample IEP addressing the Federal requirements as
part of a technical assistance effort, would be useful to parents and
State and local administrators in developing IEPs that meet Federal,
State, and local rules.
With respect to concerns about added burden, the provisions of
Sec. 300.347 are drawn directly from the statute. While the statute did
add some new requirements regarding content, it also gave the
flexibility to use benchmarks of progress as opposed to short term
objectives, and to determine how to regularly report on a child's
progress instead of the more burdensome objective criteria, evaluation
procedures and schedules required under prior law.
Except for including, essentially verbatim, the statutory content
requirements in the regulations, the format and specific language used
in developing IEPs are matters left to the discretion of individual
States, and, to the extent consistent with State requirements,
individual LEAs within the States. In providing such discretion, the
assumption is that each State and LEA would attempt to make the format
and language of the IEP as understandable and meaningful for parents as
possible. Within this general framework, IEP teams develop the specific
detail that is necessary to address each child's individual needs.
The importance of assistive technology devices and services in
meeting the special educational needs of children with disabilities is
addressed in several sections of these regulations (e.g., Secs. 300.5,
300.6, 300.308, and 300.346). The importance of ESY services and the
requirements related to addressing the need for those services is
included under Sec. 300.309. Therefore, no additional provisions are
warranted in this section.
With respect to the comment regarding the role of the regular
education teacher, the IDEA Amendments of 1997 require that at least
one regular education teacher of the child be a member of the child's
IEP team if the child is or may be participating in the regular
education environment.
The development of an interim IEP (or the use of a diagnostic
placement, on a case-by-case basis) may be appropriate for an
individual child with a disability if there is some question about the
child's special education or related services needs. However, it would
not be consistent with the requirements of this part for an LEA to
adopt an across-the-board policy of developing interim IEPs for all
children with disabilities. Clearly, in any case in which the IEP for a
child with a disability does not seem to effectively address the needs
of the child, the IEP team should be reconvened (at the request of the
child's parent or teacher(s)) to reconsider the nature and scope of the
IEP.
Changes: None.
Comment: A few comments were received related to the statement of
the present levels of educational performance in the IEP
(Sec. 300.347(a)(1)), including requesting that (1) the statement
include the results of any independent assessment that has been done,
and any reasons the LEA has for not accepting the assessment; and (2)
the provision requiring a description of how the child's disability
affects the child's involvement in the general curriculum be deleted.
One commenter recommended that this requirement and the provision on
goals and objectives in Sec. 300.347(a)(2) be revised to address the
concept of ``meaningful'' participation in the general curriculum.
Commenters also requested that, in the requirements for a description
of how a preschool child's disability affects the child's participation
in appropriate activities, the term ``appropriate activities'' be
clarified or examples given.
A number of comments were received regarding the ``statement of
measurable annual goals, including benchmarks or short-term
objectives'' (Sec. 300.347(a)(2)). Several commenters requested that
the term ``benchmarks'' be defined or clarified or that a note be added
to include examples, and that the term be distinguished from ``short-
term objectives.'' Other commenters requested that (1) the term
``measurable'' apply to short-term objectives and not to annual goals,
(2) the regulation clarify if ``measurable'' means statements of the
amount of progress expected; (3) a child's report card be used to
report annual goals; and (4) a provision be added requiring the IEP
team to be reconvened if the benchmarks indicate that the child is not
making satisfactory progress.
Comments were received on Sec. 300.347(a)(2)(i) (regarding enabling
a child to be involved in and progress in the general curriculum), as
follows: (1) make the provision clearer, including requiring that the
LEA list, for each goal and objective, each obstacle to full, effective
participation in the general curriculum, and justify use of the
resource room instead of supports in the regular classroom, and (2)
clarify what the expectations are for children with significant
cognitive disorders.
Discussion: It is important that the statement of a child's present
levels of educational performance be based on current, relevant
information about the child, that is obtained from a variety of
sources, including (1) the most recent reevaluation of the child under
Sec. 300.536, (2) assessment results from State and district-wide
assessments, (3) inputs from the child's special and regular education
teachers, and (4) information from the child's parents.
(Sec. 300.346(a)(1)). If an independent educational evaluation has been
conducted, the results of that evaluation also must be considered if it
meets agency criteria for such evaluations. (Sec. 300.502(c)(1)).
Consideration of all of the information described above is inherent
in the requirement that the IEP include ``a statement of the present
levels of educational performance.'' Therefore, it is not necessary to
amend the regulation to address this requirement.
The provision in Sec. 300.347(a)(1)(i) that requires a description
of how a child's disability affects the child's involvement in the
general curriculum (i.e., the same curriculum as for nondisabled
children) is a statutory requirement and cannot be deleted. The
requirement is important because it provides the basis for determining
what accommodations the child needs in order to participate in the
general curriculum to the maximum extent appropriate.
A basic assumption made in both the statute and these final
regulations is that the programming and services for each
``individual'' child would be tailored to address the child's unique
needs that impede the child's ability to make meaningful progress in
the general curriculum. (As explained elsewhere in this attachment, the
reference to the general curriculum in Sec. 300.347(a)(2) has been
modified to clarify that the general curriculum is the same curriculum
for nondisabled children.)
With respect to preschool-aged children, the term ``appropriate
activities,'' as used in Sec. 300.347(a)(1)(ii), includes activities
that children of that chronological age engage in as part of a formal
preschool program or in informal activities (e.g., coloring, pre-
reading activities, sharing-time, play time, and listening to stories
told or read by the parent or pre-school teacher). In order to
recognize that for some preschool-aged children appropriate goals will
be related to participation in appropriate
[[Page 12593]]
activities, as these children are not of an age for which there is not
a general curriculum for nondisabled children, a change should be made
to Sec. 300.347(a)(2).
A delineation and description of the difference between
``benchmarks'' and ``short term objectives'' is included in Appendix A.
Regarding the commenter's request that the LEA (1) list obstacles
to the child's full, effective participation in the general curriculum,
and (2) justify the use of a resource room instead of supports in the
regular classroom, no further regulation will be provided. Parents are
equal members of their child's IEP team, and can participate in the
discussion about whether there are any obstacles to ensuring the
child's full and effective participation in the general curriculum. In
any case in which the parents are not satisfied with the outcome of the
IEP meeting, they have avenues available to them under both the Act and
regulations for redressing their concerns.
See comments and discussion in Sec. 300.550 related to children
with significant cognitive disorders.
Changes: Section 300.347(a)(2)(i) has been revised to clarify that
``general curriculum'' is the same curriculum as for nondisabled
children and to recognize that a general curriculum is not available
for all preschool-aged children.
Comment: With respect to the provision in Sec. 300.347(a)(3)
(related to describing services to be provided to a child, or on behalf
of the child * * *), a few commenters requested clarification of the
term ``on behalf of the child.'' Commenters also recommended that, in
the ``statement of program modifications or supports for school
personnel,'' the regulation clarify that ``staff training'' is one form
of program support, and added that a necessary support service for
staff can often be obtained more easily if it is identified as an IEP
service.
A few commenters recommended that, in order to ensure full access
to the general curriculum, Sec. 300.347(a)(3)(ii) be amended to state
that a child's involvement and progress in the general curriculum be
``to the maximum extent appropriate to the needs of the child.'' Other
commenters requested that the provision in Sec. 300.347(a)(3)(ii)
(related to a child's participation in extracurricular activities) be
deleted because it is inconsistent with Part B. Commenters also
requested that the regulations clarify that participation in
extracurricular activities is not a part of the child's educational
program, and that such participation is subject to the same rules as
other children.
With respect to Sec. 300.347(a)(4) (an explanation of the extent to
which the child will not participate with nondisabled children), a few
commenters recommended that the provision be deleted, or that it be
stated in positive terms (extent to which the child ``will''
participate with nondisabled children). Commenters also stated that
documenting what will not happen is burdensome paperwork.
Discussion: As used in Sec. 300.347(a)(3), the term ``on behalf of
the child'' includes, among other things, services that are provided to
the parents or teachers of a child with a disability to help them to
more effectively work with the child. For example, as used in the
definition of ``related services'' under Sec. 300.24, the term ``
`parent counseling and training' means (i) Assisting parents in
understanding the special needs of their child * * * and (iii) Helping
[them] to acquire the necessary skills that will allow them to support
the implementation of their child's IEP or IFSP.''
Supports for school personnel could also include special training
for a child's teacher. However, in order for the training to meet the
requirements of Sec. 300.347(a)(3), it would normally be targeted
directly on assisting the teacher to meet a unique and specific need of
the child, and not simply to participate in an inservice training
program that is generally available within a public agency.
In order to ensure full access to the general curriculum, it is not
necessary to amend Sec. 300.347(a)(3)(ii) to clarify that a child's
involvement and progress in the general curriculum must be ``to the
maximum extent appropriate to needs of the child.'' The
individualization of the IEP process, together with the new
requirements related to the general curriculum, should ensure that such
involvement and progress is ``to the maximum extent appropriate to the
needs of the child.''
The provision in Sec. 300.347(a)(3)(ii) related to participation in
``extracurricular and other nonacademic activities'' is statutory.
The provision in Sec. 300.347(a)(4) (that requires a statement of
the extent to which a child with disabilities will not participate with
nondisabled children) is also a statutory requirement and cannot be
deleted. The basic principle underlying this requirement is that
children with disabilities will be educated in the regular education
environment along with their nondisabled peers, and that these children
are only removed from that environment if it is determined that they
cannot be appropriately served in the regular education environment,
even with the use of supplementary aids and services.
This new provision is designed to ensure that each IEP team
carefully considers the extent to which a child can be educated with
his or her nondisabled peers; and if the team determines that the child
cannot participate full time with nondisabled children in the regular
classroom and in the other activities described in
Sec. 300.347(a)(3)(ii), the IEP must include a statement that explains
why full participation is not possible.
If (for example) a child needs speech-language pathology services
in a separate setting two to three times a week, but will otherwise
spend full time with nondisabled children in the activities described
in Sec. 300.347(a)(4), the ``explanation'' would require only the
statement described in the preceding sentence. A similar explanation
would be required for any other child with a disability who, in the
judgement of the IEP team, will not participate on a full time basis
with nondisabled children in the regular class. Thus, while the IEP
needs to clearly address this situation, the required explanation does
not have to be burdensome.
Changes: None.
Comment: A few comments were received on Sec. 300.347(a)(5)
(related to State or district-wide assessments), including requesting
that: (1) the regulations clarify that if the individual modifications
necessary for a child to participate in the assessment are not known at
the time of the IEP meeting, a subsequent meeting be required to make
this determination, as long as the decision is made before the
assessment is conducted; and (2) an alternate assessment not be
construed as an exemption and a separate assessment system, but,
rather, that the provision in Sec. 300.347(a)(5)(ii)(B) be amended to
require a statement of how the child will be included in the State or
district-wide assessment program with an alternative assessment.
Discussion: If the individual modifications necessary for a child
to participate in the assessment are not known at the time of the IEP
meeting, it would be necessary for a subsequent meeting to be conducted
early enough to ensure that any necessary modifications are in place at
the time the assessment is administered. It is not necessary, however,
to add a regulation to address this matter.
The IDEA Amendments of 1997 require that all children with
disabilities be included in general State and
[[Page 12594]]
district-wide assessment programs, with appropriate accommodations,
where necessary. (Sec. 300.138). In some cases, alternate assessments
may be necessary, depending on the needs of the child, and not the
category or severity of the child's disability.
Changes: None.
Comment: Several comments were received on Sec. 300.347(a)(6)
(related to the projected date for beginning services and modifications
and their anticipated frequency, location, and duration). A few
commenters requested that the term ``anticipated'' be defined so that
it does not diminish an LEA's obligation to provide services. Some
commenters requested that the term ``location'' be defined as the
placement on the continuum and not the exact building where the IEP
service is to be provided, especially if the service is not available
in the LEA and must be provided via contract. Other commenters
similarly stated that a note be added clarifying that ``location''
means the general setting in which the services will be provided and
not a particular school or facility.
Discussion: Use of the term ``anticipated'' to diminish the
agency's obligation to provide services would be inconsistent with the
requirements of this part. Moreover, a public agency could not alter
the basic nature and scope of the child's IEP without reconvening the
child's IEP team.
The ``location'' of services in the context of an IEP generally
refers to the type of environment that is the appropriate place for
provision of the service. For example, is the related service to be
provided in the child's regular classroom or in a resource room?
Changes: None.
Comment: With respect to Sec. 300.347(a)(7) (related to a statement
of how a child's progress toward annual goals will be measured and
reported), commenters requested that a definition of ``progress
report'' be added; and stated that the provision is burdensome, and
should be changed to require that report cards for children with
disabilities contain information about the child's progress in meeting
annual goals.
Commenters also requested that the regulations (1) clarify the
manner and frequency in which parents are kept informed of their
child's progress; (2) clarify the extent to which this requirement can
be met in writing as opposed to conducting an IEP meeting; (3) require
a detailed written narrative report of how a child is progressing
toward meeting IEP objectives instead of using a grade, because a grade
is related to the system and not the child, and gives no indication of
what is right or wrong; and (4) include a provision requiring action to
be taken if satisfactory progress in not being made.
Discussion: It is not appropriate or necessary to include a
definition of ``progress report'' because that term is not used in
either the statute or these final regulations. The provision in
Sec. 300.347(a)(7)(ii) is incorporated verbatim from the statute. No
additional burden was added by the NPRM or these final regulations.
Under the statute and regulations, the manner in which that
requirement is implemented is left to the discretion of each State.
Therefore, a State could elect to ensure that report cards used for
children with disabilities contain information about each child's
progress toward meeting the child's IEP goals, as suggested by
commenters, but would not be required to do so.
With respect to the frequency of reporting, the statute and
regulations are both clear that the parents of a child with a
disability must be regularly informed of their child's progress at
least as often as parents are informed of their nondisabled children's
progress.
Requiring a ``detailed written narrative'' of how a child is
progressing toward meeting the IEP objectives, as suggested by a
commenter, could add an unnecessary burden. However, the commenter's
concern about using a grade to designate a child's progress in meeting
the IEP objectives in some cases may be valid because a grade does not
always lend itself to sufficiently describing progress toward the
annual goals. The statute and regulations make clear that a written
report is sufficient, although in some instances, an agency may decide
that a meeting with the parents (which does not have to be an IEP
meeting) would be a more effective means of communication.
The agency must ensure that whatever method, or combination of
methods, is adopted provides sufficient information to enable parents
to be informed of (1) their child's progress toward the annual goals,
and (2) the extent to which that progress is sufficient to enable the
child to achieve the goals by the end of the year.
Generally, reports to parents are not expected to be lengthy or
burdensome. The statement of the annual goals and short term objectives
or benchmarks in the child's current IEP could serve as the base
document for briefly describing the child's progress.
Changes: None.
Comment: A number of comments were received on Notes 2 through 5
(which focus on matters related to the child's participation in the
general curriculum, the expected impact on the length and scope of the
IEP from such participation and from discussing teaching methodologies,
and reporting to parents) are addressed in the following sections of
this analysis. Some commenters requested that all notes be deleted.
Other commenters requested that Notes 2, 3, and 4 be incorporated into
the regulations. A few commenters recommended that for Notes 2 and 3,
the regulations define the terms ``adaptations,'' ``modifications,''
``accommodations,'' and ``adjustments.''
Regarding Note 3, some of the commenters recommended deleting the
idea that the general curriculum is not intended to significantly
increase the size of the IEP. One commenter recommended replacing the
word ``accessing'' with ``fully participating in'' the general
curriculum. The commenter stated that the language in the note (from
the House Committee Report) could be used by LEAs as a basis for
limiting the use of the IEP as a tool for enabling children with
disabilities to participate fully in the general curriculum. Other
commenters recommended that Note 3 be deleted.
Discussion: The IDEA Amendments of 1997 emphasize providing 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. Both the Senate and House Committee Reports on Pub.
L. 105-17 state that:
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. (S. Rep. No.
105-17, p. 20; H.R. Rep. No. 105-95, p. 99 (1997))
These are important principles to keep in mind when implementing
the new IEP requirements. However, in light of the general decision to
remove notes from the final regulation, Note 2 would be removed.
The concepts in the committee reports cited in Note 3 also are
valid. The new focus of the IEP is intended to address the
accommodations and adjustments necessary to enable children with
disabilities to be able to participate in
[[Page 12595]]
the general curriculum to the maximum extent appropriate. Although the
annual goals and short term objectives (and the service accommodations
described above) would be basic components of the IEP, it would not be
appropriate for the IEP to include specific details related to the
general curriculum itself (and to daily lesson plans).
Generally, the overall length of the IEP should not be greatly
affected by including relevant information about the accommodations and
adjustments needed by the child, along with the other required
information. But the IEP should provide sufficient information
necessary to enable parents, regular education teachers, and all
service providers to understand what is required to effectively
implement its provisions. However, consistent with the general decision
made with respect to notes, Notes 2 and 3 would be deleted.
Because Note 3 has been deleted, it is not necessary to replace the
word ``accessing'' with ``fully participating in'' the general
curriculum. Clearly, the intent of the IDEA is full participation of
each child with a disability in the general curriculum to the maximum
extent appropriate to the needs of child; and the IDEA Amendments of
1997, as reflected in these final regulations, have given greater
emphasis to that intent.
It is not necessary to include a regulatory definition of the terms
``adaptations,'' ``modifications,'' ``accommodations,'' and
``adjustments.'' The terms are essentially self-explanatory, and may
overlap to some extent.
Certain changes may need to be made in a regular education
classroom to make it possible for a child with a disability to
participate more fully and effectively in general curricular activities
that take place in that room. These changes could involve (for example)
providing a special seating arrangement for a child; using professional
or student ``tutors'' to help the child; raising the level of a child's
desk; allowing the child more time to complete a given assignment;
working with the parents to help the child at home; and providing extra
help to the child before or after the beginning of the school day.
``Modifications'' or ``accommodations'' could involve providing a
particular assistive technology device for the child, or modifying the
child's desk in some manner that facilitates the child's ability to
write or hold books, etc.
Changes: Notes 2 and 3 have been removed.
Comment: Several comments were received on Note 4 (related to
teaching and related services methodologies). A few commenters
expressed support for Note 4, and stated that the note should be added
to the regulations. Other commenters requested that the note be
deleted. Some of these commenters stated that, in some instances, it
may be appropriate to include teaching methods and approaches in the
IEP, and added that when methodologies differ significantly, one
approach may be appropriate while others are inappropriate, based on
the unique needs of each individual child. Other commenters pointed out
that methodologies are an inherent part of the definition of special
education, and it would be inconsistent with the definition to not
include them in the IEP.
With respect to Note 5 (i.e., that the reporting provision in
Sec. 300.347(a)(7)(ii), related to the child's progress on the annual
goals, is intended to be in addition to regular reporting for all
children), a few commenters expressed appreciation for the provision.
Some commenters stated that the note be deleted. Other commenters
recommended that the note either be deleted, or changed to state that
the provision in Sec. 300.347(a)(7)(ii) may be incorporated as part of
the regular reporting to all parents.
Discussion: In some cases, it may be appropriate to include
teaching methods and approaches in a child's IEP. As used in the
definition of ``special education'' under Sec. 300.26, the term
``specially-designed instruction'' means ``adapting, as appropriate to
each eligible child under this part, the content, methodology, or
delivery of services * * * (i) to meet the unique needs of an eligible
child under this part that result from the child's disability * * *''
In general, however, 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.
With respect to Note 5 (that the reporting provision in
Sec. 300.347(a)(7)(ii) is intended to be in addition to regular
reporting for all children), as addressed earlier in this attachment,
the report described in Sec. 300.347(a)(7)(ii) may be incorporated in
the regular reporting to all parents. Therefore, Note 5 is not needed.
Changes: Notes 4 and 5 have been deleted.
Comment: Several comments were received on the transition services
provision in Sec. 300.347(b)(1), including requests that the
regulations: (1) clarify what is meant by transition services for 14
year-old students; (2) add ``daily living'' and independent living'' to
the example in paragraph (b)(1)(i) because transition is much broader
than employment; and (3) require that transition plans analyze and
report the prospect of a student benefiting from higher education and
if so what kind; and if vocational education is recommended and not
general higher education, the transition plans specify the reason why
general higher education is not a meaningful alternative.
A few commenters recommended that language be added to more clearly
distinguish between ``a statement of the transition service needs'' of
a student at age 14, and ``a statement of needed transition services''
at age 16. The commenters included a proposed definition that requires
the identification of targeted post-school activities.
Discussion: The terms ``a statement of the transition service
needs'' and ``a statement of needed transition services'' are
incorporated verbatim from the statute. The purpose of ``a statement of
the transition service needs'' is to focus on the planning of a
student's courses of study during the student's secondary school
experience (e.g., whether the student will participate in advanced
placement or vocational education courses).
With respect to a statement of needed transition services, the
focus is on the student's need for such services as he or she moves
from school to postschool experiences, and any linkages that may be
needed. These statements, as with the other components of the IEP, must
be individualized in accordance with the needs of the student.
The Department has invested considerable resources in providing
technical assistance in the area of transition services, and has a
number of technical assistance resources available to public agencies
in implementing these statutory provisions.
Changes: None.
Comment: A number of comments were received related to the
provision in Sec. 300.347(b)(2), that requires that if the IEP team
determines that services are not needed in one or more of the areas
specified in the definition of transition services, the IEP must
include a statement to that effect and the basis upon which the
determination was made. These commenters recommended that the provision
be deleted because it is not statutory, not needed, and adds
unnecessary and excessive paperwork.
[[Page 12596]]
Discussion: It is appropriate to remove the provision in
Sec. 300.347(b)(2) because, as stated by the commenters, the provision
is not statutory and adds unnecessary paperwork.
That provision was based on the definition of ``transition
services'' that was in effect prior to June 4, 1997, and did not
account for the change in the definition of ``transition services''
that was made by the IDEA Amendments of 1997.
The ``prior law'' definition mandated the inclusion of specific
components under the coordinated set of activities described in the
definition. In recognition that all students with disabilities may not
require services in all of the mandated areas, the final regulations
implementing that provision (published in 1992) included a statement
that ``If the IEP team determines that services are not needed in one
or more of the areas specified in [the definition of transition
services], the IEP must include a statement to that effect, and the
basis upon which the determination was made.'' However, while the new
definition of ``transition services'' added by Pub L. 105-17 includes
the same components as in prior law, the provision requiring the
inclusion of all components in a student's IEP was removed.
Changes: Sec. 300.347(b)(2) has been deleted.
Comment: Comments were received related to Notes 1, 6, and 7
following Sec. 300.347 of the NPRM, all of which focus on the
transition services requirements. Some commenters recommended that all
three notes be deleted. Other commenters recommended that Note 7 be
modified to encourage public agencies to begin transition services
before age 14. A few commenters stated that Note 7 is not needed
because the regulations are already clear.
Discussion: Consistent with the Department's decision to not
include notes in the final regulations, the notes should be deleted.
Changes: Notes 1, 6, and 7 have been deleted.
Comment: With respect to the transfer of rights at the age of
majority (Sec. 300.347(c)), one commenter stated that the provision
should be deleted. Another commenter stated that there is general
confusion about this provision, especially when parents are unable
financially or unwilling to seek legal guardianship for their child,
and added that schools need guidance. A commenter asked, how do LEAs
determine which students get transfer rights at age 18; and once
transferred, does the LEA still have to notify the parents.
Another commenter requested that the regulations allow a student to
authorize the continued participation of the student's parent or
guardian after the age of majority to develop, review, or revise an
IEP, and added that if the student authorizes parent participation, the
parent should be considered a member of the IEP team.
Discussion: The provision at Sec. 300.347(c) is statutory. Whether
or not rights transfer at the age of majority depends on State law,
and, consistent with Sec. 300.517, whether or not the student has been
determined incompetent under State law. State law also determines what
constitutes the age of majority in that jurisdiction. The discussion
concerning Sec. 300.517 in this attachment provides a fuller
explanation of the provision concerning the transfer of rights at the
age of majority. Generally, a public agency will satisfy
Sec. 300.347(c) if, at least one year before the student reaches the
age of majority under State law, the agency informs the student of the
rights that transfer at the age of majority (and includes a statement
to that effect in the IEP). If the public agency receives notice of the
student's legal incompetency, so that no rights transfer to the student
at the age of majority, the IEP need not include this statement.
The composition of the IEP team is discussed in Sec. 300.344. There
is nothing in the regulation that would prevent a student to whom
rights have been transferred at the age of majority from exercising his
or her discretion under Sec. 300.344(a)(6) to include in the IEP team a
parent as an individual with knowledge regarding the child.
Changes: None.
Private School Placements by Public Agencies (Sec. 300.349)
Comment: Some commenters suggested that Sec. 300.349(a) be amended
to require a public agency to conduct a subsequent IEP meeting before
or shortly after actual enrollment with the participation of a
representative of the private school.
A few commenters objected to the requirement in Sec. 300.349(a)(2)
that the public agency ensure that a representative of a private school
or facility at which a disabled student is publicly-placed or referred
must attend the initial IEP meeting initiated by the public agency.
These commenters recommended that a private school representative be
invited but not be forced to attend, since distance could prevent that
individual from attending.
Another recommendation made by commenters was that private school
staff should not be required to attend the IEP meeting required under
Sec. 300.349(a)(2), but that the IEP team should be allowed to confer
with private school staff after the meeting. One commenter asked
whether if the private school initiates an IEP meeting, all of the
individuals identified in Sec. 300.344 must participate.
Another commenter was concerned that this section implies that the
team has predetermined placement, and recommended requiring that a
second meeting should be held with private school staff to determine if
they could provide the services.
One commenter also indicated that Sec. 300.349(b)(2)(ii) is
confusing, because it suggests that if either the parent or public
agency disagrees with the changes proposed by the private school, those
changes will not be implemented. This commenter also questioned why
either party should have veto authority, and requested clarification
regarding the responsibility to request a hearing. However, another
commenter objected that this section gives a private school veto
authority over a decision of the IEP team.
One commenter also objected to the use of ``must ensure'' in
Sec. 300.349(a) and (b), and recommended that more qualified language
be substituted. Another commenter requested clarification that parents
have the right to be reimbursed for costs incurred as a result of their
participation at IEP meetings associated with their children's public
placements at private schools or facilities.
Discussion: Section 612(a)(10)(B) of the Act makes clear that, as a
condition of eligibility for receipt of Part B funds, States must
ensure that children with disabilities placed in or referred to private
schools or facilities by public agencies receive special education and
related services, in accordance with an IEP, at no cost to their
parents. This statutory requirement substantially reflects prior law in
this area. Section 300.401 also provides that IEPs for children with
disabilities who are publicly placed at or referred to private schools
must meet the requirements of Secs. 300.340-300.350.
Because these disabled children are publicly-placed or referred to
private schools or facilities as a means of ensuring that they are
provided FAPE, it would not be appropriate to change the regulatory
language in the manner suggested by these commenters. The regulation
gives public agencies and private schools and facilities some
flexibility in the manner in which IEP
[[Page 12597]]
meetings are conducted; however, there is no need to require additional
meetings, since these meetings can be initiated by the public agency or
requested by the private school or facility at any time.
Regarding concerns about participation of representatives of
private schools at meetings to develop the child's IEP,
Sec. 300.349(a)(2) provides that before a child with a disability is
placed or referred to a private school or facility, a representative of
that private school must be invited to the meeting to develop the
student's IEP. However, if the private school representative is unable
to attend in person, the public agency must use other methods to ensure
that individual's participation at the meeting, including individual or
conference telephone calls. Therefore, this regulation does not require
participation of a private school representative if that individual is
unable to attend the IEP meeting initiated by the public agency.
If a public agency initiates an IEP meeting in connection with a
disabled child's placement at or referral to a private school or
facility, the requirements of Sec. 300.344 regarding participants at
meetings apply. However, after the disabled child enters the private
school or facility, Sec. 300.349(b)(1) provides that the private school
or facility, at the public agency's discretion, may initiate and
conduct meetings for purposes of reviewing or revising the child's IEP.
Section 300.344 applies to all IEP meetings for which a public agency
is responsible, including those conducted by a private school or
facility for a publicly-placed child with a disability.
If a public agency exercises its discretion under
Sec. 300.349(b)(1) to permit the private school or facility to initiate
and conduct certain IEP meetings, Sec. 300.349(b)(2) specifies that the
public agency is still responsible for ensuring that the parents and a
public agency representative are involved in those IEP decisions and
agree to any changes in the child's program before they are
implemented.
Section 300.349(b) does not afford veto authority either to the
parents and the public agency, or to the private school, if there is a
disagreement about the IEP for the child to be implemented at the
private school. This is equally true for IEPs developed for public
placements of children with disabilities at private schools.
Further, Sec. 300.349(c) makes clear that the public agency is
ultimately responsible for ensuring that the publicly-placed disabled
student receives FAPE. Therefore, regardless of whether the public
agency initiates meetings for the purpose of reviewing and revising
IEPs of children with disabilities publicly-placed at private schools
or facilities, the public agency must ensure that the child's IEP is
reviewed at least once every twelve months, and that the child's
placement at the private school or facility is in accordance with that
child's IEP.
If the public agency disagrees with changes proposed by the private
school, the public agency nevertheless remains responsible for ensuring
that the student receives an appropriate program. If the private school
or facility is unwilling to provide such a program, the public agency
either must ensure that the student's IEP can be implemented at that or
another private school or facility, or must develop an appropriate
public placement for the child to address that child's needs. In all
instances, the child's placement at the private school or facility must
be based on the child's IEP, and that placement must be the LRE
placement for the child.
The commenter's assumption that normal due process rights would
apply is correct. The due process rights of Part B are available to
parents and public educational agencies to resolve issues such as the
appropriateness of the child's program at the private school, but
representatives of private schools or facilities at which children with
disabilities are publicly placed or referred do not have due process
rights.
Regarding a parent's right to reimbursement for costs associated
with their child's private school placement, Sec. 300.401 reflects the
statutory requirements of section 612(a)(10)(B) and requires that a
disabled student's placement at a private school by a public agency
must be at no cost to the child's parents, and public agencies must
ensure that all of the rights guaranteed by Part B are afforded to
publicly-placed children with disabilities and their parents. The ``at
no cost'' requirements of the Act also would require public agencies to
reimburse parents for transportation and other costs associated with
their participation at IEP meetings conducted in a geographic area
outside of the jurisdiction of the LEA, and such expenditures
traditionally have been considered the responsibility of the public
agency. See discussion under Sec. 300.24 of this attachment.
Changes: None.
Children With Disabilities in Religiously-Affiliated or Other Private
Schools
Comment: One commenter suggested that this section be amended to
require IEPs for all children with disabilities in the LEA's
jurisdiction who are placed by their parents at private schools,
regardless of whether these children receive services from the public
agency. Another commenter requested that the requirement for IEPs for
children with disabilities who are publicly-placed at private schools
be removed, and that requirements regarding service plans for children
with disabilities placed by their parents at private schools be
substituted and moved to Subpart D.
Discussion: There is no statutory authority to require public
agencies to develop IEPs for every child with a disability in their
jurisdiction placed by their parents at a private school, regardless of
whether that child receives services from the LEA. Section
612(a)(10)(A) of the Act requires States to make provision for the
participation of private school children with disabilities in programs
assisted or carried out under this part, through the provision of
special education and related services, to the extent consistent with
their number and location in the State.
Because private school children with disabilities do not have an
individual entitlement to services under Part B, it would be
inconsistent with the statute to require public agencies to develop
service plans for those private school children with disabilities who
do not receive services from the public agency. However, the
commenter's suggestion that proposed Sec. 300.350 should be deleted and
that a requirement for service plans for children with disabilities
parentally-placed at private schools should be substituted and moved to
Subpart D is reasonable.
Since private school children with disabilities are not entitled to
receive FAPE in connection with their private school placements (See
Sec. 300.403(a)), it is misleading to use the term IEP to refer to the
plans that are developed to serve them. IEPs must contain, among other
elements, the full range of special education and related services
provided to children with disabilities under these regulations.
By contrast, Sec. 300.455(b) makes clear that a private school
child with a disability receives only those services that an LEA
determines it will provide that child, in light of the services that
the LEA has determined, through the requirements of Secs. 300.453-
300.454, it will make available to private school children with
disabilities.
Therefore, proposed Sec. 300.350 should be deleted and its content
incorporated in Sec. 300.454 with appropriate revisions, and
Sec. 300.455(b) should be revised to reflect a new requirement for
service
[[Page 12598]]
plans for those private school children with disabilities in the LEA's
jurisdiction that the LEA has elected to serve in light of the services
it makes available to its private school children with disabilities in
accordance with the requirements of Secs. 300.453-300.454.
Changes: Proposed Sec. 300.350 has been deleted, and a new
Sec. 300.454(c) has been added to specify LEA responsibilities
regarding development of service plans for private school children.
Section 300.455(b) has been changed to reflect the new provision
regarding service plans for private school children with disabilities.
IEP--Accountability (Sec. 300.350)
Comment: Some commenters agreed with this regulation, while other
commenters recommended that the note either be revised or deleted. Some
commenters believe that both the section and note are inconsistent with
Congressional findings on low achievement and new performance
standards.
Commenters also recommended that the regulation be strengthened to
clarify (1) the district's obligation to monitor, review and revise the
IEP if it is not having the desired impact on the student's progress;
(2) the parent's responsibility to request an IEP meeting when progress
reports indicate that the child's IEP is not effective; (3) the extent
of the teacher's responsibility compared with that of the parent and
child; and (4) that public agencies and personnel will not be held
accountable if a child does not achieve the growth projected in annual
goals and benchmarks or objectives if they were implementing an IEP
that provided the child appropriate instruction, services and
modifications.
Other commenters were concerned about the potential negative effect
of this section on the effective implementation of transition services.
Discussion: Section 300.351 has been included in the IEP provisions
of the Part B regulations since those regulations first were issued in
1977. It continues to be necessary to make clear that the IEP is not a
performance contract and does not constitute a guarantee by the public
agency and the teacher that a child will progress at a specified rate.
Despite this, public agencies and teachers have continuing obligations
to make good faith efforts to assist the child in achieving the goals
and objectives or benchmarks listed in the IEP, including those related
to transition services.
In addition, it should be noted that teachers and other personnel
who must carry out portions of a child's IEP must be informed about the
content of the IEP and their responsibility regarding its
implementation. Because the clarification of this issue that was
previously included in the note to this section is essential to the
proper implementation of the Act's IEP requirements, a statement
regarding the responsibilities of public agencies and teachers to make
good faith efforts to ensure that a child achieves the growth projected
in his or her IEP has been included at the conclusion of this section.
In order to meet the new emphasis in the Act that children with
disabilities be involved in and progress in the general curriculum and
be held to high achievement standards, the IEP provisions must be
effectively utilized to ensure that appropriate adjustments can be made
to address performance issues as early as possible in the process.
This 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 if
the parent feels that these efforts are not being made. Further, this
section does not prohibit a state or public agency from establishing
its own accountability systems regarding teacher, school or agency
performance if children do not achieve the growth projected in their
IEPs.
Changes: The note to this section has been removed. Section 300.351
is redesignated as Sec. 300.350 of these final regulations, and the
substance of the note has been added to this section.
Use of LEA Allocation for Direct Services (Sec. 300.360)
Comment: Very few comments were received regarding this section.
One comment recommended that the words ``or unwilling'' be added to
Sec. 300.360(a)(2) to correspond to the language of Sec. 300.360(a)(3)
of the current regulations. Another comment asked that the language in
the second paragraph in the note following Sec. 300.360 be updated to
substitute the word ``disabled'' for the word ``handicapped.'' This
comment also requested that a similar change be made to the note
following Sec. 300.552.
Discussion: Section 300.360(a) essentially incorporates the text of
the current regulatory provision verbatim, except with the minor
modifications contained in section 613(h)(1) of Pub. L. 105-17. The
legislative history makes clear that Sec. 613(h)(1) has been ``retained
without substantive alteration'' from prior law. (S. Rep. No. 105-17 at
15). It is true that under Sec. 300.360(a)(3) of the regulations, an
SEA may use funds that would have gone to an LEA for direct services if
the SEA finds that the LEA either is unable or unwilling to establish
and maintain programs of FAPE for children with disabilities. This
regulatory provision implemented section 614(d)(1) of prior law which
contained the reference to LEAs that were unwilling to establish and
maintain programs of FAPE. However, since these words have not been
retained in section 613(h)(1) with regard to an LEA's or State agency's
failure to establish and maintain programs of FAPE, yet remain in the
statute with regard to an LEA's failure to consolidate with other LEA's
in applying for Part B funds, it is not appropriate to make the change
requested by this comment.
Consistent with the general decision to not include notes in these
final regulations, the note following Sec. 300.360 should be deleted.
However, the substance of the note related to the SEA's responsibility
to ensure the provision of FAPE if an LEA elects not to apply for its
Part B funds, or the amount of Part B funds is not sufficient to
provide FAPE should be added to the text of the regulations because of
its importance in ensuring that the purposes of this part are
appropriately implemented.
A new paragraph also should be added to clarify, by referencing
Sec. 300.301, that the SEA may use whatever funding sources are
available in the State to carry out its responsibilities under
Sec. 300.360.
Regarding the note following Sec. 300.360, it is important to point
out that the language that uses ``handicapped'' instead of disabled was
taken verbatim from the original regulations for this program issued in
1977. Included in this note were direct quotations from the
Department's regulation implementing Section 504 of the Rehabilitation
Act of 1973 at 34 CFR Part 104, which has not yet been updated to
substitute the term ``disabled'' or ``disability'' for the term
``handicapped'' or ``handicap.'' While the term ``handicapped'' is not
consistent with current statutory language, it is not appropriate to
modify the quoted language in the notes until the terminology in the
Section 504 regulation is updated.
Changes: The substance of the note relating to SEA's
responsibilities to ensure FAPE when the LEA elects not to receive its
Part B funds, or there are not sufficient funds to ensure the provision
of FAPE has been added to the text of the regulation. The note has been
deleted. A reference is made to other funding sources under
Sec. 300.301.
[[Page 12599]]
Use of SEA Allocations (Sec. 300.370)
Comment: Several favorable comments were received regarding this
section. One comment supported paragraph (a)(4), which permits the use
of State agency allocations to assist LEAs with personnel shortages.
One comment requested that a new paragraph (c) be added to reflect the
statutory requirement ``that LEAs participate in the priority setting
for the allocation of these funds.'' One comment requested that a note
be added following this section to clarify that direct services ``can
include using the State allocation of Part B funds to help LEAs cover
unexpected and extraordinary costs of providing FAPE to a child with a
disability in any setting along the continuum.''
Discussion: There is no statutory requirement that would require a
State to obtain input from LEAs in setting priorities for how the State
agency allocation should be spent. So long as the expenditures are
consistent with the requirements of this part, States have discretion
to determine the manner in which the funds are allocated.
Regarding the suggestion that a note be added following
Sec. 300.370, consistent with the decision to not include notes in
these regulations, a note will not be added. However, the State agency
allocation may be used for direct and support services, including the
expenditure described in this comment. Nothing in this part would
preclude an SEA from using its State allocation to assist an LEA in
defraying the expenses of a costly placement for a student with a
disability if it is determined that such a placement is necessary to
ensure the provision of FAPE to that disabled student.
Changes: No change has been made in response to these comments. See
discussion of comments received under Sec. 300.712 regarding a change
to Sec. 300.370.
General CSPD Requirements (Sec. 300.380)
Comment: A number of comments were received regarding the
recruitment and training of hearing officers included as part of CSPD.
One comment recommended that Sec. 300.380(a)(2) regarding an adequate
supply of qualified special education, regular education, and related
services personnel be expanded to include hearing officers and
mediators.
Some commenters recommended that Sec. 300.381 include a provision
requiring each state ``to establish a council of parents, educators,
attorneys, hearing officers, and mediators to develop and oversee the
recruitment, training, evaluation, and continuing education of hearing
officers and mediators'' and to ensure that they receive pre-service
training and at least annual in-service training on special education
law and promising practices, materials and technology.
A number of commenters indicated that, in order for personnel to be
``qualified'' under this part or a State's CSPD, ``the personnel must
meet the State's legal licensing or certification requirements'' and
``must have the skills and knowledge necessary to ensure that personnel
are qualified to work with children with disabilities.'' Another
comment sought clarification regarding use of Part B funds for the
training of regular education personnel.
Consistent with the emphasis on implementation, one comment
recommended that Sec. 300.380(a)(4) be amended to require that a
State's CSPD be updated at least every two years, instead of at least
every five years, as stated in the NPRM, ``and as often as the quality
of education for children with disabilities within the State may
require.'' The comment also objected that the regulation provides that
States that have a State Improvement Plan under section 653 of the Act
have met their CSPD requirements. Therefore, the comment recommended
that Sec. 300.380(b) be deleted, and instead be replaced with the last
paragraph of the note following Sec. 300.135, which gives a State that
has a State Improvement Plan the option of using it to meet its CSPD,
if it chooses to do so.
Discussion: States must ensure that mediators and hearing officers
are appropriately trained and have the requisite knowledge and
expertise regarding the requirements of this part. Otherwise, the due
process rights of children with disabilities and their parents may not
be adequately safeguarded under this part.
With respect to mediators, section 615(e)(2)(A)(iii) requires that
SEA or LEA procedures for mediation ensure that the mediation is
conducted by a qualified and impartial mediator who is trained in
effective mediation techniques. Section 615(e)(2)(C) requires the State
to 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 to children with disabilities.
Under current regulations, public agencies must maintain a list of
impartial hearing officers and their qualifications. Further, the SEA's
responsibility under section 615 of the Act to ensure that the
procedural safeguard requirements of the Act are established and
implemented includes the responsibility to ensure that impartial due
process hearing officers are appropriately trained. In addition,
Sec. 300.370 makes clear that one of the support services for which the
Part B funds reserved for State level activities may be expended is the
training of hearing officers and mediators.
The comments regarding ensuring that personnel meet State licensing
or certification requirements or are otherwise qualified under this
part are addressed elsewhere in this attachment in the discussions of
qualified personnel and personnel standards. With regard to the
training of regular education personnel, consistent with a State's CSPD
responsibilities, the State must ensure an adequate supply of special
education, regular education, and related services personnel. Further,
the training of regular education personnel is necessary to the proper
administration of the Act and regulations, including carrying out the
Act's LRE provisions, and personnel development is an appropriate
expenditure of funds under this part and is one of the support services
for which the State level allocation under Sec. 300.370 may be
expended.
Finally, there is nothing in this part that would prevent a State
from updating its CSPD more frequently than at least every five years
if the State chooses to do so. Therefore, there is no reason to
incorporate the language from the second paragraph of the note
following Sec. 300.135 in place of Sec. 300.380(b), since
Sec. 300.380(b) gives a State that has a State Improvement plan under
section 653 the option of using it to satisfy its CSPD obligations, if
the State chooses to do so.
Changes: The section has been retitled ``General CSPD
requirements.''
Adequate Supply of Qualified Personnel (Sec. 300.381)
Comment: Only a few comments were received regarding this section.
Some commenters requested that a provision be added to Sec. 300.381(b)
``requiring the State to describe the strategies it will use to address
personnel vacancies and shortages'' identified under that section.
Another comment recommended that this section highlight shortages of
personnel to do behavioral assessments and programming. Another comment
recommended that additional language be included in Sec. 300.381
requiring additional recruitment strategies and fiscal arrangements to
ensure an adequate supply of qualified personnel.
Discussion: It is acknowledged that it is very important to ensure
that appropriately-trained and
[[Page 12600]]
knowledgeable individuals conduct behavioral assessments of children
with disabilities under this part. However, the obligation under
Sec. 300.381 is a general obligation to analyze State and local needs
for professional development, including areas in which there are
shortages, to ensure an adequate supply of qualified special education,
regular education, and related services personnel under this part.
Therefore, the regulation does not identify specific categories of
personnel. In addition, States already have the ability to develop
additional recruitment strategies and fiscal arrangements if they
determine that they are needed to address their particular personnel
needs.
Changes: None.
Improvement Strategies (Sec. 300.382)
Comment: One comment recommended that the name of this section be
changed to ``Comprehensive system strategies'' to avoid confusion with
Part D. Another comment recommended that the words ``content knowledge
and collaborative skills'' to meet the needs of infants and toddlers
and children with disabilities be expanded to specify which skills are
involved, and suggested that skills such as instruction, behavioral
management, communication, and collaboration be included.
One comment expressed concern that the section in the NPRM was not
sufficiently strong to ensure that States design their CSPD to ensure
that core instructional and related needs of children with disabilities
are appropriately addressed. One comment requested clarification
regarding which entity in the State is responsible for ensuring that
the requirements of Sec. 300.382 are met. One comment suggested that
the reference to behavioral interventions in Sec. 300.382(f) should be
changed to positive behavioral supports to be more consistent with
other provisions of these regulations.
Several comments were receive regarding Sec. 300.382(g),
particularly regarding the use of the phrase, ``if appropriate.'' One
comment requested clarification on how ``appropriate'' would be
defined, as well as guiding principles ``for directing the adoption of
promising practices.'' Another comment recommended that the phrase,
``if appropriate'' be eliminated when referring to the State's adoption
of promising practices and materials and technology.
One comment was particularly favorable about the requirement for
joint training of parents, special education and related services
providers, and general education personnel. Another comment recommended
that this section be expanded to include joint training of hearing
officers and mediators with parents and education personnel.
One comment recommended that this section be amended ``to require
reports to the Department by the SEA bi-annually, including a survey of
parents of students with IEPs regarding the effectiveness of the
strategies and other tools being taught to teachers,'' and that parents
``should also be given the chance to state what tools they think ought
to be taught'' to teachers. One comment recommended that a note be
added following this section to clarify that the assurance that regular
education and special education personnel be prepared means that ``they
must be required to be prepared rather than simply `offered the
opportunity.' ''
Discussion: There is no need to change the name of this section
since it is unlikely that, even if it were changed, it would reduce the
potential for confusion between CSPD responsibilities under Part B and
those under Part D. While the delineation of content and skills for
personnel serving infants and toddlers and children with disabilities
is important, inherent in CSPD is the obligation of each State to
identify its particular personnel development needs in light of factors
that are specific to each individual State. The same is true with
respect to strategies and needs. The CSPD is one of several mechanisms
that States have to ensure that children with disabilities receive
appropriate instruction and services consistent with the purposes of
this part; therefore, the regulations do not specify which needs must
be addressed through CSPD.
References throughout this part to State mean the SEA, unless the
State has designated an entity other than the SEA to carry out the
functions of this part. Regarding Sec. 300.380(f), that section is
directed at the State's enhancement of the ability of teachers and
others to use strategies, including behavioral interventions. The
regulatory language about behavioral interventions parallels the
language in section 614(d)(3)(B)(i) of the Act.
It also should be pointed out that the term behavioral
interventions is a broad term that includes positive behavioral
supports. Regarding the use of ``appropriate'' in Sec. 300.382(g), a
State's obligation to adopt promising educational practices, materials,
and technology is dependent on the State's needs. Hence, the use of the
words ``if appropriate'' in this regulation ensures States have
flexibility in this area.
The discussion of the role of hearing officers and mediators in
response to comments on Sec. 300.380 also applies to the suggestion on
joint training of parents and special education and related services
and general education personnel required by Sec. 300.382(j) of these
regulations. It is important to point out that there is nothing in this
part that would preclude a State from including hearing officers and
mediators in the joint training activities if it chooses to do so.
The comment's suggestion for additional reporting requirements has
not been accepted. While input from parents regarding the effectiveness
of personnel development strategies would be useful, the Department is
committed to reducing paperwork burdens rather than increasing them.
Finally, with regard to training of general education personnel,
Sec. 300.382(j) already requires the participation of these individuals
in joint training activities.
Changes: None.
Subpart D
Responsibility of SEA (Sec. 300.401)
Comment: Several commenters asked that Sec. 300.401(a)(3) specify
whether the standards that apply to private schools are limited to
those necessary for the comparable provision of special education and
related services to those provided in public agencies (for example, do
private schools have to comply with SEA personnel standards beyond the
qualifications needed to provide special education and related
services).
Discussion: Children with disabilities who are placed by public
agencies in private schools are entitled to receive FAPE to the same
extent as they would if they were placed in a public school. FAPE
includes not just the special education and related services that a
child with a disability receives, but also includes an appropriate
preschool, elementary and secondary school education in the State
involved and must be provided in conformity with the child's IEP.
The IDEA Amendments of 1997 made a number of changes to reinforce
the importance of the participation of children with disabilities in
the regular education curricula and the need for children with
disabilities to have the opportunity to receive the same substantive
content as nondisabled students. These include provisions that tie IEP
goals and objectives to the regular education curriculum (section
[[Page 12601]]
614(d)(1)(A)), establish performance goals and indicators for children
with disabilities consistent with those that a State establishes for
nondisabled children (section 612(a)(16)), and require the
participation of children with disabilities in the same general State
and district-wide assessments as nondisabled students (section
612(a)(17)).
Because of these changes in the statute and the confusion that has
existed over whether all aspects of the education provided by private
schools to publicly-placed children with disabilities had to meet the
standards that apply to public agencies, a change should be made in the
regulations to ensure that children who are publicly-placed in private
schools receive services consistent with the SEAs' statutory obligation
to ensure that FAPE is provided. SEAs must ensure that public agencies
that place children with disabilities in private schools as a means of
providing FAPE make sure that the education provided to those publicly-
placed children with disabilities meets all standards that apply to
educational services provided by the SEA and LEA that are necessary to
provide FAPE.
With respect to personnel standards, for example, this would mean
that all personnel who provide educational services (including special
education and related services and non-special education services) meet
the personnel standards that apply to SEA and LEA personnel providing
similar services. The responsibility for determining what constitutes
the appropriate personnel standard for any given profession or
discipline is a State and local matter and State and local officials
have great flexibility in exercising this responsibility. With regard
to special education and related services personnel, however, the
regulations provide some parameters for how personnel standards are
developed. (See, Secs. 300.21, 300.135, and 300.136).
Changes: A change has been made to specify that a child with a
disability placed by a public agency as the means of providing FAPE to
the child must receive an education that meets the standards that apply
to the SEA and LEA.
Implementation by SEA (Sec. 300.402)
Comment: Another issue raised by comment was whether the term
``public agency'' in Sec. 300.402(b) referred to just public schools or
included other agencies. Some commenters requested that the term
``applicable standards'' in that paragraph be clarified to include
application, compliance, on-site visits, monitoring, curriculum and
evaluation standards. Several commenters requested various expansions
of Sec. 300.402(c) such as adding a 120-day consultation period prior
to adoption of standards that apply to private schools, and requiring
consultation in all phases of the development and design of SEA
standards and compliance and monitoring procedures that apply to these
private schools.
At least one commenter requested a new provision be added
establishing a mechanism for appeals to the Secretary on standards that
an SEA wants to apply to private schools.
Discussion: The term ``public agency'' as used in these regulations
is defined in Sec. 300.22. The term ``applicable standards'' is
sufficient to encompass the variety of standards that SEAs may have
that apply to private schools accepting public agency referrals of
children with disabilities for the provision of FAPE. Further
regulation about how States provide opportunities for private schools
and facilities to participate in the development and design of State
standards that apply to them is inappropriate. States should have
flexibility in developing standards that meet the requirements of the
IDEA.
The standards that SEAs apply to private schools accepting public
agency referrals of children with disabilities for the provision of
FAPE are, so long as they meet the requirements of Part B and its
regulations, a State matter, so no appeal to the Secretary is
appropriate.
Changes: None.
Placement of Children by Parent if FAPE is at Issue (Sec. 300.403)
Comment: Some commenters stated that some school districts may be
using this provision as the basis for denying special education
services to children with disabilities voluntarily enrolled in a
private school and requested that the regulations make clear that these
children are covered by the provisions of the regulations regarding
participation of private school children in the Part B program.
Discussion: The statute in section 612(a)(10)(C)(i) is clear that
an LEA must provide for the participation of parentally-placed private
school children with disabilities in the Part B program with
expenditures proportionate to their number and location in the State,
even though the LEA is not otherwise required to pay the costs of
education, including special education and related services, for any
individual child with a disability who is voluntarily placed in a
private school under the terms of Sec. 300.403.
Changes: A change has been made to Sec. 300.403(a) to clarify that
the provisions of Secs. 300.450-300.462 apply to children with
disabilities placed voluntarily by their parents in private schools,
even though the LEA made FAPE available to those children.
Comment: One commenter requested that the regulations clearly state
whether a public agency must evaluate and develop an IEP for each
private school child with a disability each year in order to avoid
potential reimbursement claims.
Discussion: The new statutory provisions, incorporated in the
regulations in Sec. 300.403 (c), (d), and (e), provide that, as a
general matter for children with disabilities who previously received
special education and related services under the authority of a public
agency, the claim for reimbursement of a private placement must be made
before a child is removed from a public agency placement. It would not
be necessary for a public agency to develop an IEP that assumes a
public agency placement for each private school child each year. LEAs
do have ongoing, independent responsibilities under the child find
provisions of Secs. 300.125 and 300.451 to locate, identify and
evaluate all children with disabilities in their jurisdiction,
including children whose parents place them in private schools. This
would include scheduling and holding a meeting to discuss with parents
who have consented to an evaluation, the results of the evaluation, the
child's needs, and whether the child is eligible under Part B. (See
Secs. 300.320, and 300.530-300.535.)
In addition, the LEA must offer to make FAPE available if the child
is enrolled in public school. A new evaluation need not be performed
for each private school child each year, but evaluations for each
private school child must meet the same evaluation requirements as for
children in public agency placements, including the requirement for
reevaluation in Sec. 300.536. In addition, since LEAs must make FAPE
available to all children with disabilities in their jurisdiction
(Secs. 300.121, 300.300), public agencies must be prepared to develop
an IEP and to provide FAPE to a private school child if the child's
parents re-enroll the child in public school.
Changes: None.
Comment: Several commenters requested that paragraph (c) be revised
to prohibit reimbursement if the private placement is inappropriate,
which was a part of the Supreme Court's standard on reimbursement
announced in School Comm. of Burlington v. Department of
[[Page 12602]]
Ed. of Mass., 471 U.S. 359 (1985) (Burlington). Another commenter
requested that the term ``timely manner'' be defined.
Another commenter requested that the Department clarify that the
provisions of Sec. 300.403 (c), (d), and (e) apply only in situations
in which the child previously has received special education and
related services under the authority of a public agency. In other
situations, where the child has not yet been provided special education
and related services, the Department should recognize that hearing
officers and courts still retain broad equitable powers to award
relief, and will continue to apply the reimbursement standard in
Burlington.
Discussion: It is not in the public interest to require that public
funds be spent to support inappropriate private placements. For these
reasons, paragraph (c) should be revised consistent with the basic
standard for reimbursement articulated by the Supreme Court in the
Burlington and Carter cases. Since, as the Supreme Court made clear in
Carter, in instances where the school district has not offered FAPE,
the standard for what constitutes an appropriate placement by parents
is not the same as the standards States impose for public agency
placements under the Act, this new provision makes clear that parental
placements do not need to meet State standards in order to be
``appropriate'' under this requirement.
As a commenter noted, hearing officers and courts retain their
authority, recognized in Burlington and Florence County School District
Four v. Carter, 510 U.S. 7 (1993) (Carter) to award ``appropriate''
relief if a public agency has failed to provide FAPE, including
reimbursement and compensatory services, under section
615(l)(2)(B)(iii) in instances in which the child has not yet received
special education and related services. This authority is independent
of their authority under section 612(a)(10)(C)(ii) to award
reimbursement for private placements of children who previously were
receiving special education and related services from a public agency.
The term ``timely manner'' should not be defined, since what
constitutes timely provision of FAPE is best evaluated within the
specific facts of individual cases. (See, e.g., Secs. 300.342(b) and
300.343(b)).
Changes: Paragraph (c) has been revised to include the requirement
that the private placement by the parents must be appropriate (as
determined by a court or hearing officer) in order to be eligible for
reimbursement, and to make clear that a parental placement does not
need to meet the State standards that apply to education provided by
the SEA and LEAs in order to be found to be appropriate.
Comment: A number of commenters suggested definitions of various
terms used in Sec. 300.403(d) and (e) and other changes to the
provisions of these paragraphs, some of which would have made
recovering reimbursement more difficult for parents and others which
would have limited school districts' use of these provisions in defense
of a reimbursement claim.
Discussion: With the exception of making clear that the regulation
also applies when parents choose to enroll their child in a private
preschool program, no change is necessary. The regulation in
Sec. 300.403(d) and (e) reflects the statutory language, which balances
the interests of parents and public agencies. (See the explanation of
the definition of ``business day,'' under the discussion of comments to
Sec. 300.8, a term which is used in several places in these
regulations.)
Changes: Paragraph (c) has been revised to specify that the
reimbursement provisions of Sec. 300.403 also apply if 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 preschool program.
Definition of ``Private School Children With Disabilities''
(Sec. 300.450)
Comment: Several commenters asked that the Department clarify
whether children with disabilities who are home-schooled are included
in the definition of ``private school children with disabilities''.
Discussion: State law determines whether home schools are ``private
schools.'' If the State recognizes home schools as private schools,
children with disabilities in those home schools must be treated in the
same way as other private school children with disabilities. If the
State does not recognize home schools as private schools, children with
disabilities who are home-schooled are still covered by the child find
obligations of SEAs and LEAs, and these agencies must insure that home-
schooled children with disabilities are located, identified and
evaluated, and that FAPE is available if their parents choose to enroll
them in public schools.
Changes: None.
Child Find for Private School Children With Disabilities (Sec. 300.451)
Comment: Some commenters stated that there have been major
difficulties in many areas of the country in ensuring that private
school children with disabilities are identified and evaluated. Some
commenters also noted the new statutory provision limiting the amount
of funds that must be spent on parentally-placed private school
children with disabilities based on the number of identified
parentally-placed private school children with disabilities creates an
additional need for timely and effective child find for this
population. These commenters requested that the regulation be revised
to require that consultation with appropriate representatives of
private school children occur before the public agency conducts child
find activities and to provide that child find activities for
parentally-placed private school children be done on the same or
comparable timetable as for public school children. Another commenter
requested that child find activities include children placed by their
parents in private residential facilities.
Discussion: The role of child find for parentally-placed private
school children is very important for services for this population.
Section 612(a)(10)(A)(i) and the regulations in Sec. 300.452 tie the
amount of money that will be used for parentally-placed private school
children with disabilities to the number of parentally-placed private
school children with disabilities in each LEA. Clearly, the adequacy of
the LEA's child find activities for parentally-placed private school
children with disabilities will be crucial to determining how many
children with disabilities are parentally-placed in private schools,
and consequently, the amount of funds that must be spent by an LEA on
special education and related services to parentally-placed private
school children with disabilities. For these reasons, LEAs should
consult with representatives of private school children with
disabilities on how to conduct child find activities for parentally-
placed private school children with disabilities in a manner that is
comparable, which would include timing, to child find for public school
children with disabilities.
LEAs are required to conduct child find activities for children
residing in their jurisdiction. Generally, as a matter of State law,
children are considered to reside in the home of their parents even if
they physically do not live there. Whether children who are in private
residential facilities are residing in the jurisdiction of an LEA when
that facility is within the boundaries of the LEA will be dependent on
State law.
Changes: The term ``religiously-affiliated'' has been replaced with
[[Page 12603]]
``religious,'' to more accurately reflect the types of schools. The
term ``public agency'' has been replaced with ``LEA,'' a technical
change. Paragraph (a) has been revised (see description of comments
received under Sec. 300.453 regarding that revision). A new paragraph
(b) has been added requiring public agencies to consult with
representatives of parentally-placed private school students with
disabilities on how to conduct child find activities for that
population in a manner that is comparable to that for public school
children.
Provision of Services--Basic Requirement (Sec. 300.452)
Comment: None.
Discussion: None.
Changes: Consistent with the comments, discussion, and changes
under Sec. 300.341, a new paragraph (b) has been added to Sec. 300.452
regarding the SEA's responsibility for ensuring that a services plan is
developed and implemented for each private school child with a
disability who has been designated to receive special education and
related services under this part.
Expenditures (Sec. 300.453)
Comment: One commenter asked for clarification that there is no
obligation to spend more than the total per capita Federal allocation
to the LEA, and use of State or local funds are not required, for
private school children. Another commenter requested that the note
following this section be integrated into the regulation, as it
provided valuable guidance to States. Several commenters were concerned
that LEAs were suggesting that no services needed to be provided to
private school students as a proportional share of the Federal funds
was being used to conduct evaluations of these children. Another
commenter asked whether a longstanding State program that allocates
funding to be used for private school children for certain special
education and related services and evaluations can be used to satisfy
the requirements of this section.
Several commenters noted the importance of determinations of the
number of parentally-placed private school children with disabilities
in calculating required expenditures and asked for specificity in how
this number is determined. Another commenter requested that the
Department require that each LEA separately account for funds used for
private school children with disabilities and clarify that these funds
are only to provide special education and related services and cannot
be used to carry out activities such as child find.
Discussion: It is important to clarify that there is a distinction
under the statute between the obligation to conduct child find
activities, including individual evaluations, for parentally-placed
private school children with disabilities, and the obligation to use an
amount of funds equal to a proportional amount of the Federal grant to
provide special education and related services to parentally-placed
private school children with disabilities. The obligation to conduct
child find, including individual evaluations, exists independently from
the services provision described in Secs. 300.452-300.456, and the
costs of child find activities, such as evaluations, may not be
considered in determining whether the LEA has spent the amount
described in Sec. 300.453 on providing special education and related
services to parentally-placed private school children with
disabilities.
The statute describes the minimum amount that must be spent on
these services and does not specify that only Federal funds can be used
to satisfy this obligation. Thus, if a State or LEA uses other funds to
provide special education and related services to private school
children, those funds can be considered in satisfying the provisions of
Sec. 300.453, so long as the services are provided in accordance with
the other provisions of Secs. 300.452-300.462.
The statute does not prohibit a State or LEA from spending
additional State or local funds to provide special education and
related services to private school children. To make this important
point, in light of the general decision to remove all notes from these
regulations, the note that followed this section in the NPRM should be
incorporated into this section as paragraph (d).
Determining the number of parentally-placed private school children
with disabilities is particularly important. Child find, which includes
locating, identifying and evaluating children, is an ongoing activity
that SEAs and LEAs should be engaged in throughout the year for all
children in order to meet the statutory obligations to ensure that all
children in the State are located, identified and evaluated and that
all children have the right to FAPE. The statute does not distinguish
between child find activities for children enrolled in public schools
and those conducted for children enrolled in private schools.
In addition, the importance of child find for determining the
amount to be spent on services for parentally-placed private school
children with disabilities also argues for clarity in the regulations
that child find activities for private school children with
disabilities must be comparable to child find activities conducted for
children in public schools. Further regulation also is necessary on
determining the number of parentally-placed private school children
with disabilities so as to eliminate the potential for disputes about
how to determine the number of private school children with
disabilities that will be used as the basis for the calculation and to
provide a clear standard for LEAs to meet. Possible alternative
standards for who to count, such as private school children referred
for evaluation, or private school children with disabilities who are
receiving services pursuant to Secs. 300.450-300.462 are not consistent
with the statutory language.
Since LEAs and SEAs are already counting children with disabilities
who are receiving special education and related services on December 1
or the last Friday in October of each year (the State decides which
date to use on a State-wide basis) for funding and data reporting
purposes, conducting the count of eligible parentally-placed private
school children with disabilities on that date as well is reasonable,
reduces the amount of double counting of private school children with
disabilities who move from one location to another, and gives States
the same flexibility they have with regard to counting children with
disabilities who are receiving services. Furthermore, this count will
provide the public agencies the basis on which they will be able,
consistent with Sec. 300.454, to plan for the services that will be
provided during the subsequent school year.
Changes: A new paragraph (c) has been added to Sec. 300.453 to
specify that the costs of child find activities for private school
children with disabilities may not be considered in determining whether
the LEA met the expenditures requirements of this section. A paragraph
(d) has been added to clarify that States and LEAs are not prohibited
from spending additional funds on providing special education and
related services to private school children with disabilities. The note
has been removed.
Section 300.451 has been revised to specify that child find
activities for parentally-placed private school children with
disabilities be comparable to child find activities for children with
disabilities in public schools.
Section 300.453 has been revised to add a new paragraph (b) that
specifies that each LEA consult with representatives of private school
children with disabilities to decide how to conduct the count of the
number of parentally-placed children with
[[Page 12604]]
disabilities in private schools on December 1 or the last Friday of
October for determining the amount that must be spent on providing
special education and related services for private school children for
the subsequent school year, and that the LEA ensure that count is
conducted.
Services Determined (Sec. 300.454)
Comment: Several commenters requested clarification of ``timely and
meaningful'' so that parents, private school representatives and LEAs
would have a better understanding of how this process works. Various
other suggestions included public notice of the consultation meetings,
public transcripts of those meetings, and requiring explanations of
refusals to provide service, and decisions on allocations of funds for
services for private school children.
Discussion: The needs of private school children with disabilities,
their number and their location will vary over time and, depending on
the circumstances in a particular LEA, will differ from year to year.
However, an annual consultation with representatives of private school
children is not required, since States and LEAs are best able to
determine the appropriate period between consultations based on
circumstances in their jurisdictions.
Paragraph (b)(3) specifies that consultation must take place before
decisions are made affecting the opportunities of private school
children with disabilities to participate in the State's special
education program which is assisted or carried out with Part B funds.
The regulations on this consultation process have not been amended, in
the expectation that all parties will treat others in the process with
reason and respect.
Changes: No change was made in response to these comments. See
discussion of comments received under Sec. 300.350 regarding a change
to Sec. 300.454.
Services Provided (Sec. 300.455)
Comments: Several commenters expressed concern that using the term
``IEP'' in this section added to confusion over whether private school
children served under these provisions were to receive all the services
they need, or just those services that had been decided through the
consultation process would be provided. Several suggested that a
different term, ``statement of special education and related services
to be provided'' be substituted. Other commenters objected to the
definition of a term ``comparable in quality'' not used in the statute.
Discussion: The use of the term ``IEP'' could result in confusion
about whether these children receive all the services they would have
received if enrolled in a public school. A different term, services
plan, will be used. However, to the extent appropriate given the
services that the LEA has selected through the consultation process
described in Sec. 300.454, that services plan must meet the
requirements for an IEP in order to ensure that the services are
meaningfully related to a child's individual needs. For example, in
almost all instances, the services plan developed for an individual
private school child with a disability would have to meet the
requirements of Sec. 300.347(a)(1)-(4), (6) and (7).
Whether those statements would also have to meet the requirements
of Sec. 300.347(a)(5), (b) and (c) would depend on the services that
are to be provided to the parentally-placed private school student with
a disability. Paragraph (c) provides useful guidance to LEAs and
parents that will prevent disputes. That content will be retained, but
the definition should be eliminated.
Changes: Paragraph (a) has been retitled ``General.'' Paragraph (b)
has been revised by referring to a services plan instead of an IEP and
by specifying that, for the services that are provided, the services
plan, to the extent appropriate, must meet the content requirements for
an IEP (Sec. 300.347) and be developed consistent with Secs. 300.342-
300.346. The useful content from paragraph (c) of the NPRM has been
incorporated into paragraph (a).
Location of Services; Transportation (Sec. 300.456)
Comment: Some commenters requested that the Department require
services to children in private schools be provided on-site, stating
that providing services at a neutral site is disruptive and time
consuming. Another asked for more specificity as to the phrase
``consistent with law.'' Several commenters objected to the treatment
of transportation in Sec. 300.456(b), some stating that there is no
individual right to transportation under the Act, while others noted
that providing transportation services could use all the funds
available for special education and related services. Others asked why
a certain related service (transportation) had been singled out for
special treatment.
Discussion: Decisions about whether services will be provided on-
site or at some other location should be left to LEAs, in consultation
with representatives of private school children. Although in many
instances on-site services are most effective, local considerations
should allow flexibility in this regard. A change should be made to
Sec. 300.454(b)(1) to make clear that where services are provided is
subject to consultation with representatives of private school
children.
The phrase ``consistent with law'' is statutory. As Note 1
following this section indicated, the Department's position, based on
the decisions of the Supreme Court in Zobrest v. Catalina Foothills
School Dist. (1993) and Agostini v. Felton (1997) is that there is no
Federal constitutional prohibition on providing publicly-funded special
education and related service on-site at private, including religious
schools. These decisions make clear that LEAs may provide special
education and related services on-site at religious private schools in
a manner that does not violate the Establishment Clause of the First
Amendment to the U.S. Constitution.
While the statute and regulation do not require the provision of
services on-site to private school children, to the extent it is
possible to do so, LEAs are encouraged to provide those services at
private school sites so as to minimize the amount spent on necessary
transportation and to cause the least disruption in the children's
education. However, State constitutions and laws must also be consulted
when making determinations about whether it is consistent with law to
provide services on-site at a religious school.
If services are offered at a site separate from the child's private
school, transportation may be necessary in order to get the child from
one site to the other, or the child may be effectively denied an
opportunity to benefit. In this sense then, transportation is not a
related service but is a means of making the services that are offered
accessible. LEAs should work in consultation with representatives of
private school children to ensure that services are provided at sites
that will not require significant transportation costs. In light of the
decision to remove notes from the final regulations, paragraph (b) of
this section should be revised to incorporate the concept from the note
that transportation does not need to be provided between the child's
home and the private school.
Changes: Section 300.456 has been re-titled ``Location of services;
transportation.'' A technical change has been made to paragraph (a) to
refer to religious schools rather than religiously-affiliated schools.
Paragraph (b) has been revised to explain when
[[Page 12605]]
transportation is required. Section Sec. 300.454(b)(1)(iii) has been
revised to specify that where services are provided is a subject of
consultation between the LEAs and representatives of private school
children. The notes following this section in the NPRM have been
removed.
Complaints (Sec. 300.457)
Comment: Several commenters objected to Sec. 300.457(a) because
they believed that a child in a private school should be able to
receive a due process hearing on complaints about services once the LEA
has decided to provide services to that child. Most of those commenters
indicated that there may be legitimate issues regarding whether the LEA
complied with obligations to a specific child it had agreed to serve.
One commenter agreed with the position in the NPRM that if FAPE
does not apply to private school children, due process also would not
apply. Another commenter suggested that due process also should not
apply to the child find obligations described in Sec. 300.451.
Discussion: Section 615(a) of the Act specifies that the procedural
safeguards of the Act apply with respect to the provision of FAPE to
children with disabilities. The special education and related services
provided to parentally-placed private school children with disabilities
are independent of the obligation to make FAPE available to these
children.
While there may be legitimate issues regarding the provision of
services to a particular parentally-placed private school child with
disabilities an LEA has agreed to serve, due process should not apply,
as there is no individual right to these services under the IDEA.
Disputes that arise about these services are properly subject to the
State complaint procedures, which are available to address
noncompliance with any requirement of Part B.
On the other hand, child find is a part of the basic obligation to
make a FAPE available to all children with disabilities in the
jurisdiction of the public agency, and so failure to properly evaluate
a parentally-placed private school child would be subject to due
process.
Changes: A new paragraph (b) has been added to specify that due
process procedures do apply to child find activities, including
evaluations.
Requirement That Funds not Benefit a Private School (Sec. 300.459)
Comment: One commenter asked how an LEA is to discern whether funds
are being used to benefit the private school. Another questioned
whether this provision is consistent with other provisions that allow
funds to be used by an LEA to provide staff development for special and
regular education personnel, consultative services and provisions that
permit other children to also benefit when a teacher or other provider
is providing special education or related services to a child with a
disability.
Discussion: LEAs should use reasonable measures in assessing
whether Federal funds are being used to benefit private schools. This
provision does not prohibit private school teachers from participating
in staff development activities regarding the provisions of IDEA when
their participation can be accommodated.
If consultation services are provided to a private school teacher
as a means of providing special education and related services to a
particular private school child with a disability and that teacher uses
the acquired skills in providing education to other children, whatever
benefit those other children receive is incidental to the publicly
funded services and is not prohibited by this provision.
On the other hand, if an LEA simply gave a private school an amount
of money rather than itself providing or purchasing services for
parentally-placed private school children with disabilities, in
addition to violating the requirements of Secs. 300.453 and 300.454,
would raise very significant concerns about compliance with
Sec. 300.459(a).
In the interest of regulating only where necessary, the regulations
do not further specify measures of when a private school is benefiting
from the Federal funds.
Changes: None.
Use of Private School Personnel (Sec. 300.461)
Comment: One commenter noted that private school personnel used to
provide services to private school children under Part B should be
required to meet the same standards as public school employees
providing those services to public or private school children.
Discussion: Section 300.455 specifies that services provided to
private school children must be provided by personnel meeting the same
standards as those providing services in public schools. This would
apply to private school personnel who, under Sec. 300.461, are being
used to provide services under Secs. 300.450-300.462 to private school
children with disabilities.
Changes: A technical change has been made to Sec. 300.461 to make
clear that the services addressed are those provided in accordance with
Secs. 300.450-300.462.
Requirements Concerning Property, Equipment and Supplies for the
Benefit of Private School Children With Disabilities (Sec. 300.462)
Comment: One commenter asked whether costs for inventory control
can be considered as a part of the proportionate share of the LEA's
Part B funds that are to be expended for providing services to private
school children. The commenter also asked for specificity regarding the
procedures to be used for maintaining administrative control of all
property, equipment and supplies acquired for the benefit of private
school children.
Discussion: Reasonable and necessary costs for inventory control of
property, equipment and supplies located in a private school related to
providing special education and related services to private school
children with disabilities can be considered a part of the cost of
providing special education and related services to private school
children with disabilities. Effective procedures for ensuring
administrative control will vary depending on local considerations.
Changes: None.
Subpart E Procedural Safeguards
General Responsibility of Public Agencies; Definitions (Sec. 300.500)
Comment: One commenter asked whether the definition of
``evaluation'' at Sec. 300.500(b)(2) precludes the use of tests which
are based on the general curriculum and which may be used with all
children in a school or class as the primary means of evaluation.
Another commenter asked if any evaluation after an initial evaluation
is considered a reevaluation. It was also suggested that the revocation
of consent only be allowed before the first day of the child's
placement. There was also a request that the note (which concerns the
non-retroactivity of a revocation by a parent of their consent) be
included in the text of the regulation.
Some commenters also wanted a definition of ``educational
placement'' included in Sec. 300.500(b), consistent with prior policy
issuances regarding the definition.
Discussion: The statutory changes to the evaluation procedures that
are reflected in Secs. 300.530-300.536 make clear that an
``evaluation'' will include review of existing data, which may include
results on tests or other procedures that are based on the general
curriculum and may be used with all children in a grade, school, or
class. The definition of ``evaluation'' in the NPRM
[[Page 12606]]
at proposed Sec. 300.500(b)(2) had not been updated to recognize this
change in the statute. Therefore, a change has been made to eliminate
the last sentence in the proposed definition of ``evaluation'' so that
it does not imply that an evaluation may not include a review of a
child's performance on a test or procedure used with all children in a
grade, school or class. This change does not mean that a public agency
must obtain parental consent before administering a test used with all
children unless otherwise required. (See Sec. 300.505(a)(3)). Section
300.532 sets forth the procedures required to individually evaluate a
child. Section 300.533 addresses the use of existing evaluation data
which can include information available on the results of tests and
procedures used for all children in a school, grade or class.
To distinguish an initial evaluation from a reevaluation, an
initial evaluation of a child is the first completed assessment of a
child to determine if he or she has a disability under IDEA, and the
nature and extent of special education and related services required.
Once a child has been fully evaluated the first time in a State, a
decision has been rendered that a child is eligible under IDEA, and the
required services have been determined, any subsequent evaluation of a
child would constitute a reevaluation.
Regarding revocation of parental consent, parents cannot be forced
to consent to decisions related to their child's education. However, it
would be impractical to allow a parent to retroactively apply a
revocation of consent where parental consent is required. Thus, once a
parent consents to an educational decision concerning their child, be
it an evaluation or provision of service(s), any revocation of their
consent once the action to which they initially consented has been
carried out will not affect the validity of the action. Since the non-
retroactivity of a parent's revocation of consent is based on the
Department's interpretation of the statute, and is important to make
clear to all parties, it should be set forth in the regulation itself.
The educational placement of a child focuses on the implementation
of a child's IEP and cannot be defined generally given that each child
has different educational needs. Section 300.552 addresses the meaning
of educational placement by describing the factors involved in making a
placement decision and explains the concept in the context of the least
restrictive environment. There is no additional benefit to defining
further the term educational placement at Sec. 300.500.
Changes: The note following this section has been deleted and
Sec. 300.500(b)(1)(iii) has been amended by adding language to clarify
that a revocation of consent does not have retroactive effect if the
action consented to has already occurred. Section Sec. 300.500(b)(2)
has been amended by removing the last sentence of that paragraph.
Opportunity to Examine Records; Parent Participation in Meetings
(Sec. 300.501)
Comment: Some commenters asked that the term ``all'' with respect
to meetings in Sec. 300.501(a)(2) be deleted as that term is not used
in the statute, as well as delete the term ``all'' with respect to the
term ``education records'' and replace it with ``special.'' Another
suggestion was to require in Sec. 300.501(a)(1) that copies of tests
given to a child and manuals to interpret such tests be made available
for the parents to review. One commenter asked whether therapy notes
are considered educational records and another asked that the public
agency be required to specify time periods within which the inspection
and review right must be carried out.
Several commenters expressed concern that the definition of
``meetings'' was too narrow; the commenters recommended the definition
be drafted to insure that it means any event where decisions are made
regarding a child's identification, evaluation or placement. Others
asked that the definition be removed entirely. It was also requested
that the potential for any confusion regarding informal meetings held
by school personnel be eliminated. Several commenters recommended
deleting the reference at Sec. 300.501(a)(2)(ii) to the provision of
FAPE, claiming this would overly broaden the meetings at which parents
should be given the chance to attend, precluding the ability for
internal meetings without the parents. A commenter also asked that
Sec. 300.501(a)(2) include the opportunity to attend eligibility
meetings.
Commenters also asked that Sec. 300.501(b)(2) be amended to include
in the definition of ``meetings'' those that occur via conference call
or video conferencing, not just face-to-face meetings. Several comments
advised that the language as proposed at Sec. 300.501(b)(2) might
result in parents being excluded from curriculum planning meetings for
individual children under the guise of ``teaching methodology, lesson
plans or coordination of service provision'' meetings. There were
several recommendations that there be a specific timeline for giving
parents notice of meetings, such as at least 10 business days before a
meeting.
Regarding placements, many commenters stated that parents should be
informed by public agencies of the various alternative placements
available, not just the one ultimately chosen, and the reasons for
rejecting the other potential placements. Further, it was suggested
that the language in Sec. 300.501(c)(1) be placed in the IEE section of
the regulations.
Several commenters also stated that video-conferencing (referenced
in Sec. 300.501(c)(3)) would be costly and prohibitive for many
schools. Some thought the language in Sec. 300.501(c)(5), ``whatever
action is necessary'', was too broad and should be a reasonable or
feasible standard. There were also concerns that Sec. 300.501(c)(5)
should not require schools to ensure participation and comprehension by
the parents, but that they should make reasonable attempts to ensure
parents participate and understand.
Discussion: The statute specifically states that parents have the
right to participate in meetings regarding identification, evaluation,
placement or FAPE. Paragraph (b)(2) describes the types of discussions
that do not fall within this requirement. The term ``all'' should be
deleted to be consistent with the statutory language.
The term ``all education records'' is from the statutory reference
to ``all records relating to such child'' at section 615(b)(1) of the
Act. The Department has always interpreted the term to mean all of the
child's education records to be consistent with the purpose of IDEA and
the applicable confidentiality provisions of the General Education
Provisions Act at 20 U.S.C. 1232g, also known as the Family Educational
Rights and Privacy Act of 1974 (FERPA) as directed by section 617(c) of
the Act.
Education records are defined at Sec. 300.560 by reference to the
definition of education records in 34 CFR part 99 (the regulations
implementing FERPA). The term means those records that are directly
related to a student and are maintained by an educational agency or
institution or by a party acting for the agency or institution. Given
the definition, it follows that tests taken by a child are included in
the education records available for review by a parent. The discussion
following Sec. 300.562 in the attachment further discusses what is
considered an education record of a child and the timelines for
parental inspection and review of education records.
Regarding the definition of ``meetings,'' the proposed definition
was
[[Page 12607]]
intended to make clear that parents have the right to be notified of
and attend meetings which, generally, are scheduled in advance, and in
which public agency personnel are to come together at the same time,
whether face-to-face or via conference calls or video-conferencing, to
discuss, and potentially resolve, any of the issues described in
paragraph (b)(2).
Informal discussions among teachers and administrators, which may
or may not be pre-arranged, are not meetings for which parents must
receive notice and the opportunity to attend. Whether or not a meeting
is prearranged is not the deciding factor in determining whether
parents would have the right to attend; rather, the fact that the
meeting is to discuss and potentially resolve one or more of the issues
identified in paragraph (b)(2) triggers the parents' right to be
involved.
In practical terms, this means that meetings to which the child's
parents must be afforded the opportunity to attend cannot be convened
without providing parents with reasonable notice. However, in the
interest of regulating only where necessary, the first sentence of
paragraph (b)(2) would be removed and no specific timeline regarding
parental notice of meetings would be added.
The right of parents to participate in meetings where the provision
of FAPE to their child is being discussed is statutory. The point of
the provision is to ensure parents have the opportunity to participate
in discussions where substantive decisions regarding their child's
education are made--a key principle of the IDEA Amendments of 1997.
Eligibility determinations are the focus of the identification process
and are already part of Sec. 300.501(a)(2). A parent's role in the
eligibility determination also is addressed under Sec. 300.534 of these
regulations.
With respect to placement, if parents are to be meaningfully
involved in the placement decision for their child it is necessary that
they understand the various placement options. It is implicit in the
requirement that parents be ensured the opportunity to be members of
any group making the placement decision, that whatever placement
options are available to a child will be fully discussed and analyzed
at placement meetings, allowing input from all the participants.
Relocating the language at Sec. 300.501(c)(1) in the IEE section of
the regulations does not make sense since the purpose of
Sec. 300.501(c) is placement and that of IEE's is evaluation.
Whether or not video-conferencing, as well as other methods for
enabling full participation in meetings by those with a right to
attend, are used is dependent on the particular circumstances, and no
one method is mandated. If one effective option would be more costly in
a particular situation than another, there is no mandate that the more
costly alternative be chosen.
Section 300.501(c)(4) explains that placement decisions may be made
by public agencies without the parents if the agency is unable to
obtain the parents' participation in the decision and documents its
attempts to ensure their involvement. Once a parent makes clear that he
or she will be involved in the placement decision-making process,
Sec. 300.501(c)(5) requires that the agency ensure that the parent is
actually able to participate in, which includes understanding, the
process. However, it is possible that even if an agency makes
reasonable efforts, consistent with Sec. 300.501(c)(5), to ensure a
parent's participation, the parent is still not able to meaningfully
participate. Thus, it appears useful to clarify the regulation.
Changes: Section 300.501(a)(2) has been amended to delete the word
``all'; Sec. 300.501(b)(2) (definitions of ``meetings'') has been
amended by replacing ``a prearranged event in which'' with ``when;''
and deleting ``and place;'' and Sec. 300.501(c)(5) has been revised to
refer to reasonable efforts to ensure parent participation.
Independent Educational Evaluation (Sec. 300.502)
Comment: Some commenters thought that allowing the public agency to
initiate a hearing regarding parental requests for independent
educational evaluations (IEE), without allowing parents the right to
likewise initiate a hearing, would cause excessive litigation. Further,
it was suggested that States be required to develop clear criteria for
acceptance of IEEs as the primary means of determining eligibility.
One commenter asked that a formula be established for reimbursing
parents who assume the responsibility of establishing eligibility for
their children. Several commenters urged that an IEE must be consistent
with the requirements of a full and individual evaluation under
Secs. 300.530-300.536. It was also suggested that although the criteria
under which an IEE is obtained at public expense should be the same as
the criteria used by the public agency when it initiates an evaluation,
reasonable travel should be allowed when community professional
resources are limited.
A few comments requested limiting the cost of an IEE to a
reasonable and customary charge, as well as restricting the type of
evaluation conducted, such as evaluating only educational, not medical,
needs.
Comments were received recommending that before a parent may
request an IEE, there must have been an LEA evaluation, the results
with which the parents disagree. The commenters stated that parents who
refuse to consent to a public evaluation and then demand an IEE at
public expense should not receive an IEE, unless they can demonstrate a
legitimate reason for refusing to consent to the undertaking of a
public evaluation.
Commenters both supported and opposed Notes 1 and 2, some wishing
their deletion and some wanting them included as part of the
regulations. Many commenters suggested that parents should explain why
they disagreed with the public evaluation, or that the public agency
should be able to request such information and have time to alleviate
the parents' concerns, and that the parent should request a hearing if
he or she wants one so the burden to demonstrate that the evaluation
was appropriate would not fall solely on the public agency.
There were several requests for a definition of unnecessary delay
in Sec. 300.502(b), some proposing 10 calendar or school days from the
receipt of a request for an IEE.
Discussion: The purpose of requiring the public agency to either
initiate a due process hearing if it wishes to challenge a parent's
request for an IEE, or otherwise provide an IEE at public expense, is
to require public agencies to respond to IEE requests and to ensure
parents are able to obtain an IEE as set forth in section 615(b)(1) of
the Act. There is no corresponding need to specify that a parent also
has the right to initiate a due process hearing since if a public
agency does not do so it must provide the IEE at public expense.
IEEs would be only one element in the eligibility determination
since the evaluation team reviews the existing evaluation data and then
determines what additional data are needed to determine whether the
child has or continues to have a covered disability, the child's
present levels of performance and whether the child needs or continues
to need special education and related services (see Sec. 300.533(a) and
(b)). Methods in addition to IEEs are to be used to determine whether a
child is eligible under IDEA. Therefore, the results of IEEs cannot be
the sole determining factor for eligibility.
Under IDEA, it is the public agency's responsibility to establish
eligibility. If parents are willing to assume the
[[Page 12608]]
responsibility, on behalf of the public agency, for having the
assessment of their child under IDEA done, they should be reimbursed
for the assessment methods agreed upon by the public agency and
parents. The agreement between the parents and public agency would
depend on their special circumstances so regulating on this issue would
not be helpful. However, this procedure would not be an IEE.
Since Sec. 300.502(e)(1) states that IEEs at public expense are to
be conducted pursuant to the same criteria that apply to evaluations
conducted by public agencies, it follows that the requirements at
Secs. 300.530-300.536 would apply to the IEEs. Note also that for an
IEE obtained by a parent either at public or private expense to be
considered by the public agency, such IEE must meet agency criteria.
Therefore, the parents must be able to have access to the relevant
agency criteria. To that end, Note 2 should be deleted and, in modified
form, included in the text of the regulation at Secs. 300.502(a)(2),
300.502(c)(1), and 300.502(e)(1).
There is nothing in the regulations with respect to IEEs, or
evaluations in general, that would prevent reasonable travel for
necessary services not available in the community.
Since public agencies must provide parents with information about
where IEEs may be obtained, provided the options are consistent with
Secs. 300.530-300.536, public agencies have some discretion in the cost
if it is at public expense. Further, evaluations of children under IDEA
are to cover all areas of suspected disability, which may include
medical examinations for purposes of determining the child's
disability. There may be situations in which a child's educational
needs are intertwined with a child's health needs, therefore, stating
that the types of evaluations conducted are only those regarding
educational need does not add any useful clarity.
The right of a parent to obtain an IEE is triggered if the parent
disagrees with a public initiated evaluation. Therefore, if a parent
refuses to consent to a proposed public evaluation in the first place,
then an IEE at public expense would not be available since there would
be no public evaluation with which the parent can disagree. If the
parent believes the proposed public evaluation is inappropriate, he or
she may pursue an appropriate publicly-funded evaluation via the
mediation or due process procedures under Secs. 300.506-300.509.
With respect to Note 1, while it would be helpful for parents to
explain their disagreement over a public evaluation, there is nothing
in the statute which prevents parents from obtaining an IEE if they did
not express their concerns first. Therefore, Note 1 would be deleted
and the regulation changed to state that the public agency may request
an explanation from the parents regarding their concerns when the
parent files a request for an IEE at public expense. However, such an
explanation may not be required of the parents and the provision of an
IEE, or initiation of a due process hearing to defend the public
evaluation, may not be delayed unreasonably regardless of whether or
not the parent explains his or her concerns to the public agency.
Since the necessity or reasonableness of a delay is case specific,
no definition of these terms has been added.
Changes: Note 2 has been deleted and Sec. 300.502(a)(2) and (e)(1)
have been amended to provide that on request for an IEE, parents are
provided with information about where an IEE may be obtained and the
agency criteria applicable to IEEs and that those criteria are
consistent with the parent's right to an IEE.
Note 1 has been deleted and Sec. 300.502(b) has been revised to
explain that an explanation of parent disagreement with an agency
evaluation may not be required and the public agency may not delay
either providing the IEE at public expense or, alternatively,
initiating a due process hearing.
Prior Notice by the Public Agency; Content of Notice (Sec. 300.503)
Comment: One commenter stated that Sec. 300.503(b)(8) should be
removed, believing it to exceed the statute and because an explanation
of State complaint procedures is given in the procedural safeguards
notice. The commenter also believed it is inconsistent to inform
parents about the State complaint process without the other two
(mediation and due process appeals) being explained.
Several commenters asked for specific types of organizations to be
listed in Sec. 300.503(b)(7), such as parent training institutes.
Another commenter wanted the title of Sec. 300.503 to be changed to
``Prior Notice by the Public Agency Before Implementing an IEP.''
Several commenters asked that a note be added to explain when the
notice needs to be sent.
Requests were received to delete Sec. 300.503(b)(6) and to insert
the phrase ``unless it is clearly not feasible to do so'' as stated in
Sec. 300.503(c)(ii) whenever language or mode of communication is
addressed. It was also suggested that a note be added that an LEA must
document its attempts at accessing resources to assist in translating
or interpreting information.
Discussion: Section 300.503(b)(8) was proposed to enhance the
awareness of parents of low cost and less adversarial mechanisms for
resolving disputes with school districts. Therefore, it makes sense to
require State complaint procedures to be explained along with due
process and mediation rather than in this notice. Since
Sec. 300.503(b)(6) requires that parents be advised of the existence of
procedural safeguards and, if the written notice is not part of an
initial referral for an evaluation, be told how a copy of the
procedural safeguards notice can be obtained, it would be useful and
appropriate to add a specific requirement for an explanation of the
State complaint process in Sec. 300.504(b).
Procedural safeguard notices must be given to the parents, at a
minimum, upon the four events set forth at Sec. 300.504(a); between
those events and the statement mandated at Sec. 300.503(b)(6), agencies
should have ample instances in which they must provide parents with
effective notice of the various processes for challenging proposed
action. Therefore, Sec. 300.503(b)(8) should be deleted and moved to
Sec. 300.504(b).
The types of organizations which exist to help parents understand
IDEA are varied and depend on the particular State. Therefore, a list
of such organizations in the regulations would not be feasible.
The regulation is already clear on when the prior written notice
must be given: a reasonable time before the public agency proposes or
refuses to initiate or change the child's identification, evaluation,
educational placement or provision of FAPE. If parental consent is
required for the proposed action, the notice may be given when parental
consent is requested. Further, the notice is required at times other
than only before implementing a child's IEP so the title should not be
changed.
Section 300.503(b)(6) is taken directly from the statute. In
addition, it is difficult to understand when it would not be feasible
to add the statement required by Sec. 300.503(b)(6).
It is not necessary to add a note requiring an agency to document
its efforts to translate or interpret the notice pursuant to
Sec. 300.503(c)(2)(i) and (ii) since Sec. 300.503(c)(2)(iii) requires
that the agency can show that Sec. 300.503(c)(2)(i) and (ii) have been
met.
Changes: Section 300.503(b)(8) has been deleted and moved to
Sec. 300.504(b).
[[Page 12609]]
Procedural Safeguards Notice (Sec. 300.504)
Comment: Several commenters were opposed to specifying the times
procedural safeguards notice are to be given to the parents, claiming
such requirements are expensive and burdensome. One commenter asked
that the terms ``opportunity to present complaints'' and ``due process
hearings'' be clarified since the two terms seem to mean the same thing
for purposes of the procedural safeguards notice. Other commenters
objected to Secs. 300.504(a)(2), 300.504(b)(7), and 300.507(c)(2)(iii).
There were several suggested additions to the timing and contents
of the procedural safeguards notice. Commenters suggested that the
procedural safeguards notice: (1) Also be required when there is a
decision to remove a child from his or her current educational
placement for disciplinary actions resulting from behaviors described
in Sec. 300.520 or Sec. 300.521, or for a period of more than 10 school
days for other violations; (2) contain information with respect to the
transfer of rights at the age of majority and the circumstances under
which tuition reimbursement may be denied; (3) contain information on
the use of private and public insurance to pay for Part B services; (4)
contain information as to where parents can receive help in
understanding procedural safeguards; (5) state that a public agency may
not deny a parent's right to a due process hearing if the parent fails
to participate in a meeting to encourage mediation; and (6) include a
complete listing of all times when the safeguards notice is to be
provided.
Discussion: The minimum times the procedural safeguards notice must
be given to parents is set forth in the statute at section 615(d)(1).
The fourth requirement, that the notice be given upon receipt of
request for a due process hearing, comes from the requirement at
section 615(d)(1)(C) that the notice be given upon registration of a
complaint under section 615(b)(6).
The longstanding interpretation of the statutory mandate at section
615(b)(6) that parents have the opportunity to present complaints
relating to their child's identification, evaluation, educational
placement and provision of FAPE, is that they have an opportunity to
request a due process hearing. Therefore, Sec. 300.504(b)(5) should be
modified to make clear that the opportunity to be explained is that of
presenting complaints to initiate due process hearings pursuant to
Sec. 300.507. Section 300.504(b)(10) as stated is then clearer in that
it refers to an explanation of the actual due process hearing
procedures. Also, in adding Sec. 300.504(b)(14), a corresponding change
to the first paragraph of Sec. 300.504(b) must be made to reference
State complaint process.
Sections 300.504(a)(2) and (b)(7) are required by the statute. The
provision in Sec. 300.504(c)(2)(iii) has been in the regulations since
1977 and there is no basis for changing the requirement given that
purpose is to ensure that parents receive assistance in understanding
the notice.
Regarding the several suggested additions to the timing and
contents of the procedural safeguards: (1) Sec. 300.504(b)(7) as
written addresses situations where children are disciplined and placed
in interim alternative educational placements; (2) Sec. 300.504(b)(8)
as written addresses situations resulting in reduction of reimbursement
of private school tuition; (3) Sec. 300.347(c) requires that at least
one year before the student reaches the age of majority under State law
the parents and the student will receive notice of the projected
transfer of rights through the IEP; (4) Sec. 300.142(e) specifies that
private insurance can only be used with informed parent consent and
that public insurance can only be used if it will not result in a cost
to parents; (5) Sec. 300.503(b)(7) already includes sources for parents
to use to help in understanding their rights; and (6)
Sec. 300.504(b)(9) already requires that the mediation process, which
includes parental rights therein, be fully explained.
The information on the content and timing of the procedural
safeguards notice is not included in the statutory description of the
contents of this notice.
Changes: As discussed under Sec. 300.503, a new Sec. 300.504(b)(14)
has been added to address State complaint procedures. The first
paragraph of Sec. 300.504(b) is amended to recognize this change.
Section 300.504(b)(5) is amended to refer to presenting complaints to
initiate due process hearings.
Parental Consent (Sec. 300.505)
Comment: A few comments suggested that the term ``informed'' be
inserted before ``parental consent'' in Sec. 300.505(a)(1).
Several commenters believe that parental consent should be required
for all reevaluations, not just those where new tests are necessary.
Other commenters also requested that the term ``new test'' be changed
to encompass other evaluation procedures. Others stated that the term
``new test'' confused rather than clarified when consent needed to be
obtained and requested that it be clarified or deleted. Some commenters
suggested that an explanation be added to clarify that where additional
data are needed in order to reevaluate a child, parental consent is
required. There were also questions regarding the necessity of consent
for adapted or modified assessments if not part of a reevaluation, such
as ongoing classroom evaluations (e.g. the Brigance) and counseling.
Several commenters believe that parental consent should be required
before special education services are discontinued, for example, upon
graduation. A few commenters recommended that reevaluations for
children who are suspended for more than 10 days or expelled should be
able to proceed even if parental consent is not given.
The use of Sec. 300.345(d) procedures to meet the reasonable
measures requirement of Sec. 300.505(c) was opposed by some commenters,
several of whom believe that documenting efforts to obtain parental
consent should be sufficient. Some also wanted reasonable measures to
be defined more specifically.
Several comments advocated deleting Note 3 and others believed Note
3 should be incorporated into the regulation. Further, it was
recommended that the clarification in Note 2 be revised to state that
the public agency consider implementing its procedures to override a
parent's refusal to consent to services the public agency believes are
necessary for the child to receive FAPE, rather than requiring the
public agency to implement such override procedures.
Discussion: Parental consent must be informed to be consistent with
the statute and meaningful. Further, adding the word ``informed'' at
Sec. 300.505(a)(1) is consistent with the definition, in
Sec. 300.500(b)(1), of consent.
In order for children to receive FAPE, the IDEA Amendments of 1997
emphasized the importance of parent involvement in their children's
evaluation and placement. The statute requires informed parental
consent prior to a child's initial evaluation for special education and
related services, as well as any reevaluations. The intent of this
statutory change was not 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 as an on-going practice.
[[Page 12610]]
To require parental consent for collection of this type of
information would impose a significant burden on school districts with
little discernable benefit to the children served under these
regulations. The statute provides that in some instances, an evaluation
team may determine that additional data are not needed for an
evaluation or reevaluation. In all instances, parents have the
opportunity to be part of the team which makes that determination.
Therefore, no parental consent is necessary if no additional data are
needed to conduct the evaluation or reevaluation.
To make this clear and to respond to commenters who believed that
requiring parental consent only when conducting a new test as part of
the reevaluation was too narrow, the regulation should be revised to
specify that parental consent must be obtained before conducting an
evaluation or reevaluation, to delete proposed paragraph (a)(1)(iii)
and add a new provision to state that parental consent need not be
obtained before reviewing existing data as a part of an evaluation or
reevaluation or before administering a test or other evaluation that is
administered to all children unless consent is required of all parents.
Parental consent would be necessary if a test is conducted as a
part of an evaluation or reevaluation, and when any assessment
instrument is administered as part of an evaluation or reevaluation.
However, schools would not be required by these regulations to obtain
parental consent for teacher and related service provider observations,
ongoing classroom evaluation, or the administration of or review of the
results of adapted or modified assessments that are administered to all
children in a class, grade, or school.
If a child is about to graduate or otherwise stop receiving special
education and related services, Sec. 300.503's prior notice
requirements would be triggered. Section 300.503 requires that written
notice must be sent to the parents before a proposed change in
identification, evaluation, placement, or the provision of FAPE is
effective, thereby allowing the parent the opportunity to object to the
proposal. It is not appropriate to regulate further on this issue here.
Paragraph (b) of this section addresses the procedures an agency
can use if it wants to pursue an evaluation or reevaluation, but the
parents have refused consent. The agency may seek to do the evaluation
or reevaluation 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. Proposed Notes 1 and 3, and the second part
of proposed Note 2 were attempts to clarify the interplay between the
Federal requirement to provide FAPE and any State laws and policies
which may not permit educational agencies to override refusals of
parents to consent to evaluations and reevaluations.
In practical terms, if a State does not allow the agency to
override a parent's refusal for an initial evaluation or reevaluation
which the agency deems necessary in order to provide FAPE, the agency,
under paragraph (b), must follow the requirements of State law. In
cases where the evaluation or reevaluation is necessary in order to
determine that the child is or continues to be a child with a
disability under Part B of the Act, and State law prohibits an agency
from overriding a parental refusal to consent, the agency may have no
recourse but to not provide, or not continue to provide, services under
the Act to the child.
On the other hand, if State law does not prohibit the agency from
overriding a parental refusal to consent to an evaluation or
reevaluation, and the agency believes that an evaluation or
reevaluation is necessary in order to provide FAPE, the agency would
have to take appropriate action.
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, and the agency deems the evaluation or reevaluation necessary
in order to provide FAPE, the agency would use the State mechanism to
pursue the evaluation. If State law permits agencies to override a
parental refusal to consent to an evaluation or reevaluation, but does
not specify the procedures to use, and the agency determines that the
evaluation or reevaluation was necessary in order to provide FAPE to
the child, the agency would use the due process and mediation
procedures under Part B of the Act.
Of course, if an agency proposed an evaluation or reevaluation and
the parent refused consent, the agency could reconsider whether its
proposed evaluation or reevaluation was necessary, if the circumstances
warrant. However, in light of the general decision to remove all notes
from the regulations implementing Part B of the Act, the notes should
be removed.
Paragraph (c) of this section addresses situations in which an
agency seeks parental consent for a reevaluation, but the parent fails
to respond. Given the importance of parental involvement, the
procedures a public agency must use to demonstrate that it has taken
reasonable measures to obtain parental consent pursuant to
Sec. 300.505(d) should be consistent with the procedures in
Sec. 300.345(d) that a public agency must use to inform and encourage
parents to attend IEP meetings. The methods described in
Sec. 300.345(d) are examples of how to attempt and document the steps
that the public agency has taken to obtain parental participation in an
IEP meeting, and are applicable to a public agency's attempts to obtain
parental consent pursuant to 34 CFR 300.505.
Section 300.345(d) does not require a public agency to take all of
the steps mentioned before conducting the meeting. A public agency may
use a method which is different from the ones listed at Sec. 300.345(d)
to demonstrate that it has attempted to obtain parental consent as long
as it can demonstrate that its methods were appropriate. Therefore, the
language concerning the use of the Sec. 300.345(d) procedures to meet
the reasonable measure requirement of Sec. 300.505(c) should be
retained.
Under paragraph (d) of this section if a State adopts consent
requirements in addition to those required in Sec. 300.505(a)(1),
public agencies are not excused from their obligation to provide FAPE
because a parent refuses to consent unless the public agency has taken
the steps necessary to resolve the matter. In order to resolve the
disagreement with the parent, it is appropriate for the public agency
to use informal means initially, such as a parent conference. However,
if these informal means prove unsuccessful, the public agency must use
its override procedures if it continues to believe that the disputed
service or activity is needed in order for the child to receive FAPE.
Paragraph (e) of this section contained a typographical error
because it should have referred to consent required under paragraphs
(a) and (d), consistent with the prior regulations. With regard to
paragraph (e), it is important to recognize that except for the service
or activity for which consent is required under paragraphs (a) and (d),
parent refusal to consent to one service or benefit may not be used to
deny the parent or child any other service or benefit available to
them. For example, if a State requires parental consent to the
provision of all services identified in the 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. Similarly, a parent
[[Page 12611]]
refusal to consent to a reevaluation may not be used to deny a child
the right to participate in a class trip. A parent refusal to consent
to the collection of additional data that a public agency believes is
needed as a part of a reevaluation may not be used to deny the child
the services that are not in dispute. In addition, a parent refusal to
consent to the collection of additional data that the agency thinks
necessary to determine whether the child continues to be a child with a
disability may not result in the exclusion of the child from special
education and related services because Sec. 300.534(c)(1), which
reflects the statutory requirements of section 614(c)(5), requires a
full evaluation before determining that a child is no longer a child
with a disability. To make this point more clearly, paragraph (e) would
be revised.
Changes: Section 300.505(a)(1) has been amended to refer to
``informed parent consent,'' and to delete the unnecessary reference to
programs providing special education and related services. A reference
to reevaluation has been added to paragraph (a)(1)(i), paragraph
(a)(1)(iii) has been deleted, and a new paragraph (a)(3) added to
specify that parental consent is not required before reviewing existing
evaluation data as a part of an evaluation or reevaluation or for
administering a test used with all children unless consent is required
of all parents. Paragraph (e) has been revised to provide that a public
agency may not use a parental refusal to consent to one service or
benefit under paragraphs (a) and (d) to deny the parent or child
another service, benefit, or activity, except as may be required by
these regulations. The notes following this section have been removed.
Mediation (Sec. 300.506)
Comment: Several commenters asked that the terms ``SEA'' and
``LEA'' be used in lieu of ``public agency'' since the statute uses
those terms. There were also requests for a clarification of the
State's responsibility for the costs of the mediation process.
There were a few requests for clarification of who may be
mediators, such as whether or not former LEA employees would be able to
be mediators. There were comments asking for more restrictions on who
could be a mediator and comments asking for fewer restrictions,
especially where a public school district already has certain mediators
under state law or regulation. The latter commenters believe the
restrictions should only address employees of an agency that is
providing direct services to a child who is the subject of the
mediation or any state agency described in Sec. 300.20.
There was also the suggestion that LEA employees be permitted to
serve as mediators, however, either party would have the right to
reject such selection. The commenters pointed out that there is no
similar prohibition against LEA employees being hearing officers and
several questioned whether the restrictions were therefore necessary.
Some commenters suggested that the regulation make clear that multiple
mediators or mediation panels are allowed, i.e., that a single mediator
is not required for each mediation.
Other comments recommended that Note 1 be deleted, while others
asked that it be included in the text of the regulation. With regard to
Note 1, for situations in which agreement on a mediator could not be
reached, commenters sought additional guidance in the regulation.
Other suggestions for the mediation process included promoting
mediation even before a due process hearing is requested and allowing
an LEA to select a mediator who it believes is best able to resolve
issues in dispute. There were comments that mediation should be allowed
to occur via telephone when necessary. Several commenters asked that
the agreement reached in mediation be added to the child's IEP as soon
as possible after the agreement is reached, however not later than 10
days from the agreement. Commenters also requested that the regulation
specify that the written mediation agreement would be as enforceable as
a due process hearing decision, and that mediation discussions may be
disclosed in any proceeding brought to enforce a mediation agreement.
Some comments stated that there appeared to be a conflict between
Secs. 300.506(d)(1) and 300.506(d)(2). The former allows a public
agency to require parents who elect not to go to mediation to meet with
a disinterested party to learn about the mediation process. The latter
states that if a parent does not participate in the informational
meeting regarding mediation the public agency may not deny or delay the
parent's right to due process hearing. The comments suggested changing
Sec. 300.506(d)(1) to state that the procedures may ``request'' not
``require'' the parents to learn about mediation. A few comments
requested a specific definition of the term ``disinterested party'' and
parent information and training centers, as well as clarification of
any supervision required over disinterested parties. There were also
comments which asked that LEAs be required to mediate if the parents
agree, as well as be required to attend a mediation informational
meeting if it chooses not to mediate.
Discussion: Mediation is an important alternative system for
resolution of disputes under Part B. However, in order for mediation to
be effective, it must be an attractive alternative to both public
agencies and parents and it must be an impartial system which brings
the proper parties into a confidential discussion of the issues and
allows for a binding agreement that resolves the dispute.
The statute clearly states that the option of mediation must be
available whenever a due process hearing is requested. No further
requirement would be added to the regulations. However, States or other
public agencies are strongly encouraged to offer mediation or other
alternative systems of dispute resolution prior to the filing of a
request for a due process hearing, and whenever a dispute arises.
An expanded use of mediation should enable prompt resolution of
disputes and lead to a decrease in the use of costly and divisive due
process proceedings and civil litigation. Mediation may also be useful
in resolving State complaints under Secs. 300.660-300.662.
The term ``public agency'' in the regulation appropriately includes
State and local educational agencies as well as other agencies in the
State that may have responsibility for the education of children with
disabilities because it ensures access to the mediation process,
regardless of the agency that provides educational services. The
requirement that the State bear the cost of the mediation process is
clearly set out in the regulation; however, the regulation should be
revised to correctly refer to the meetings to encourage the use of
mediation. In addition, the potential savings of mediation, when
compared to litigation, make it an attractive, low-cost option for most
public agencies.
While there is nothing in the Part B regulations that precludes
parents and LEA employees from attempting to resolve disputes through
an informal process, the use of current LEA employees as mediators
would make mediation a much less attractive alternative to parents. The
regulatory provisions regarding the impartiality of mediators and the
requirement of specialized expertise in laws and regulations relating
to the provision of special education and related services are intended
to be more stringent than the Federal requirements for impartial
hearing officers to ensure that mediation is a more attractive option
for parents, and an effective option for both parties. The use of a
single mediator in the
[[Page 12612]]
mediation process is important for clear communication and
accountability.
Paragraph (b)(1)(iii) of this section, which repeats statutory
language, is clear that each mediation be conducted by one mediator, as
opposed to a panel or multiple mediators.
Another factor that will determine the success of mediation within
a State is the selection process for mediators. It is important to note
that with respect to paragraph (b)(2) of this section, the Senate and
House Committee Reports on Pub. L. 105-17 include 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.
(S. Rep. No. 105-17, p. 27 (1997); H. Rep. No. 105-95, p. 106
(1997).)
The success of a mediation system will be closely related to both
parties' trust and commitment to the process. The first test of that
process will be the selection of the mediator. Parties that mistrust
the mediator selection process may be less likely to reach agreement on
substantive issues. Therefore, reflecting the language of the
Committees' reports on this topic, a change should be made to the
regulation to specify that if a mediator is not selected on a random
basis from the State-maintained list, both parties are involved in
selecting the mediator and are in agreement with the selection of the
individual who will mediate.
Like hearing officers, mediators must be able to be paid by the
State, without impacting their impartiality. Language similar to that
used for impartial hearing officers should be added to the regulation
to clarify that even though a mediator is paid for his or her services
as a mediator, such payment does not make that mediator an employee for
purposes of impartiality.
The regulatory requirement for the use of a qualified mediator
instructed in effective mediation techniques will ensure that decisions
about the effectiveness of specific techniques, such as the need for
face-to-face negotiations, telephone communications, or IEP
implementation provisions, will be based upon the mediator's
independent judgment and expertise. Therefore, it is not necessary to
regulate on these issues.
The enforceability of a mediation agreement, like the
enforceability of other binding agreements, including settlement
agreements, will be based upon applicable State and Federal law. With
regard to the provision in paragraph (b)(6) of this section that
mediation discussions must be confidential and may not be used in any
subsequent due process hearings or civil proceedings, the Senate and
House Committee Reports on Pub. L. 105-17 note 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.'' (S. Rep. No. 105-17,
p. 27 (1997); H. Rep. No. 105-95, p. 107 (1997)). The Reports also
include 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.
Regarding the perceived conflict between Sec. 300.506(d)(1) and
(d)(2), the mediation process, including meetings to discuss the
benefits of mediation, should not be used to deny or delay parents' due
process hearing rights. The purpose behind Sec. 300.506(d)(2) is to
ensure that in situations where parents are unwilling or unable to
cooperate with a public agency regarding a meeting to discuss the
benefits of mediation, there is still a timely resolution of the due
process hearing. In general, a hearing officer should not extend the
timelines for a due process hearing based on the fact that there is a
pending mediation in the case unless both parties have agreed to that
extension. If mediation is used in the resolution of a State complaint,
it should not be viewed as creating, in and of itself, an exceptional
circumstance justifying an extension of the 60 day time line. While the
State or local educational agency may require that the parent attend
the meeting to receive an explanation of the benefits of mediation and
to encourage its use, a parent's failure to attend this meeting prior
to the due process hearing should not be used to justify delay or
denial of the hearing or the hearing decision.
It is not necessary to define the terms ``parent training and
information centers'' or ``community parent resource center'' since
they are established by statute. To allow flexibility with regard to
the designation of a ``disinterested party'' by the parent
organizations or an appropriate alternative dispute resolution entity,
no definition would be provided. Consistent with the general decision
to remove all notes from these final regulations, Notes 1 and 2 would
be removed.
Changes: A new paragraph (b)(2)(ii) is added to specify that the
mediator be selected from the list on a random basis, such as a
rotation, or that both parties are involved in selecting the mediator
and agree with the selection of the individual who will mediate. Notes
1 and 2 have been removed. Paragraph (b)(3) has been revised to refer
to the meetings to encourage the use of mediation.
Another new paragraph (c)(2) is added to clarify that payment for
mediator services does not make the mediator an employee for purposes
of impartiality.
Impartial Due Process Hearing; Parent Notice (Sec. 300.507)
Comment: There were several comments requesting changes to
Sec. 300.507. With regard to the model form for hearing requests, some
commenters requested that where the public agency requests the due
process hearing, the public agency would provide the notice requested
of the parents at Sec. 300.507(c)(1) and (c)(2). Others requested that
parent information and training centers and the general public be
required to assist in developing the model form required in
Sec. 300.507(a)(3).
The Department also received comments asking that
Sec. 300.507(c)(4) be modified so that LEAs can ask a hearing officer
to delay a due process hearing for a reasonable period of time until
the parents provide the district with the required pre-hearing notice.
Some commenters suggested that parents be informed of free and low cost
legal advocacy as a matter of routine, not just after requesting a due
process hearing. Other commenters sought additional language specifying
that LEAs be barred from coming to a due process hearing with a new IEP
developed without direct parental input and based on the information
given by the parents in the hearing request.
Commenters also requested that the statutory provisions regarding
attorneys' fees at sections 615(i)(3)(D) and (F) of the Act be included
in this regulation. Others requested that the term ``or refusal to
initiate or change'' be added to Sec. 300.507(c)(2)(iv).
Some commenters asked that the Department delete Note 1, while
others asked that Note 1 be written into the regulation itself.
Discussion: The prior written notice requirement of Sec. 300.503 is
sufficient to inform parents of what the public agency is proposing.
Therefore, any hearing request by the public agency on
[[Page 12613]]
that proposal would not require an additional notice by the agency.
Another notice would be repetitive and overly burdensome. Likewise,
many public agencies already have existing model forms for hearing
requests. Since the statute and regulation specify the information
which parents must disclose in the hearing request, additional input
from parent information and training centers or the general public is
unnecessary and would create additional burdens without much benefit.
The Senate and House Committee Reports on Pub. L. 105-17 note 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 Reports include 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. (S. Rep. No. 105-
17, p. 25 (1997); H. R. Rep. No. 105-95, p. 105 (1997)).
The changes to Sec. 300.513 clarify the potential for reduction of
attorneys' fees in cases where proper notice is not given by the
parents' attorney. Therefore, a reference to attorneys' fees is not
necessary here.
Matters such as what evidence should and should not be presented
and requests for extensions of time, should be handled on a case-by-
case basis by the impartial hearing officer presiding over the hearing.
It has also been the Department's long-standing position that Part B of
the Act and the regulations under Part B 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.
The request for modification of the regulation at
Sec. 300.507(c)(2)(iv) to include situations where the nature of the
problem is the public agency's refusal to initiate or change the
provision of a free appropriate public education, is consistent with
the requirements of Sec. 300.507(a)(1). In light of the general
decision to remove all notes from these final regulations, Notes 1 and
2 should be removed.
Changes: Section 300.507(c)(2)(iv) is amended to make clear that a
problem may have arisen as a result of an agency's proposal or refusal
to act. Notes 1 and 2 have been removed.
Impartial Hearing Officer (Sec. 300.508)
Comment: The Department received several comments requesting
amendments to the regulation on hearing officers in two main aspects--
qualifications and public notice of such qualifications. In the first
area, commenters stated that persons who are employees of any LEA,
persons who were employees of an SEA or LEA and were involved in the
care or education of any child in the past 5 years, and attorneys who
represent primarily the school district or parents cannot be hearing
officers. In the second area, commenters requested that hearing
officers be required to take training and competency examinations
designed by this Department and supplemented with State-specific
elements. Several commenters also want SEAs to publish the criteria
they use to choose hearing officers and that the list of all the
hearing officers and their credentials be provided to parents
requesting a due process hearing. Commenters also suggested that the
regulation require that if a sublist of hearing officers is generated
for a particular hearing, the parents or their representative be
present at the meetings where the sublist is selected. Further,
commenters asked that the statement of the qualifications of hearing
officers be updated annually and the impartiality of a hearing officer
be determined by an objective standard, such as a State's Code of
Judicial Conduct.
Discussion: The regulation, in conjunction with State ethics
requirements for attorneys and judges, are sufficient to address the
concerns raised by commenters with regard to potential conflicts. In
States where there are no formal ethical standards for administrative
hearing officers, the issue should be addressed within the State. A
prior employee of an LEA or SEA should not be barred from serving as a
hearing officer where there is no personal or professional interest
that would conflict with his or her objectivity in the hearing. Hearing
officers, like judges, are capable of making independent determinations
of potential conflicts of interest, including a determination of
whether he or she has knowledge or information about a particular child
derived from outside the hearing process which would impact upon his or
her impartiality.
Although numerous commenters asked for national standards,
training, and examinations for impartial hearing officers, decisions
about training and hearing officer selection, including the use of
sublists, should be left to States. Since hearing officers' decisions
are subject to judicial review, there is a strong incentive for States
to choose qualified hearing officers, conduct appropriate training and
establish standards of expertise. Hearing decisions that are not
soundly decided will lead to further litigation, be more likely to be
reversed and create higher costs. In addition, reviewing courts are
less likely to give judicial deference to a hearing officer where his
or her qualifications show no expertise in the area of special
education.
Changes: None.
Hearing Rights (Sec. 300.509)
Comment: There were several specific comments regarding hearing
rights. With respect to the additional disclosure of information, some
commenters stated that the time frame should be 5 school days, not
business days, prior to a hearing, and the recommendations should be
clarified as written recommendations which may be summaries of oral
recommendations. A few commenters also suggested that
Sec. 300.509(a)(3) and (b) use the same standard of business days to
avoid confusion.
With respect to the parental hearing rights, some commenters
suggested that since it sometimes not in the interest of the child to
be present at the hearing, the parents should have the right to have
the child who is the subject of the hearing present for only a portion
of the hearing. There were also comments that a free written record is
too expensive for States to provide, as well as comments that a
verbatim recording should be at no cost to the parents.
With respect to general hearing rights, commenters asked that
evidence that has not been disclosed within the appropriate time frame
not be allowed unless agreed to by both parties or for good cause shown
for the failure to disclose in advance. Commenters also asked that the
regulations state that the only pre-hearing discovery allowed is the
exchange of information set forth in Sec. 300.509. Finally, commenters
requested that hearing decisions be made available to the public at
least on a quarterly basis.
Discussion: The establishment of two separate time frames for the
prehearing disclosure of documents because the term ``5 business days''
is used in Sec. 300.509(b)(1) and the term ``5 days'' is used in
paragraph (a)(3) of this section will lead to confusion and additional
litigation and costs. In order to prevent
[[Page 12614]]
this, the time frame for disclosure would be set to 5 business days
prior to the hearing. This change would be consistent with prior
interpretations by the Department, which recognized that the intent of
prehearing disclosure is to avoid surprise by either party at the
hearing. The hearing officer has discretion to determine the
consequences of not meeting the disclosure time line, and may prohibit
the introduction of the evidence or may allow the rescheduling of the
hearing so that timely disclosure is possible.
Some States chose to allow the use of other discovery procedures
prior to a due process hearing. States should continue to have this
discretion as they are not prohibited from doing so by Part B.
Access to a written verbatim record of the hearing is vital for
parents to exercise their full due process rights. Although there are
costs associated with the statutorily mandated shift of the choice
between an electronic or written record of the hearing from the public
agency, as newer technologies are better capable of generating accurate
transcriptions, these costs will decrease.
Parents must continue to have the choice to have the child be
present for all or part of the hearing, at their discretion. For some
youth with disabilities, observing and even participating in the
hearing will be a self-empowering experience in which they can learn to
advocate for themselves. This long-standing choice should not be taken
away from parents. This choice takes on added significance in light of
the new provisions that allow States to transfer parental rights to
students at the age of majority. Under this new authority, there may be
more situations where students will have to be present at and
participate in due process hearings.
Implicit in the requirement that hearing decisions be made
available to the public, is the requirement that they be made available
within a reasonable amount of time. Therefore, no specific time
requirement is needed in the regulation.
Changes: Paragraph (a)(3) of this section is changed to require
disclosure at least 5 business days before the hearing.
Finality of Decision; Appeal; Impartial Review (Sec. 300.510)
Comment: Several comments regarding the availability of SEA hearing
decisions, asked that such decisions be distributed directly to various
organizations and allow parents to receive the findings under
Sec. 300.510(b)(2)(vi) in an electronic format. Other comments
requested that hearing officers be allowed to amend decisions once they
are final to correct for technical errors, similar to Rule 60 of the
Federal Rules of Civil Procedure.
One commenter asked that Notes 1 and 2 be incorporated into the
regulation itself and several commenters pointed out that the reference
in Sec. 300.510(b)(2)(iii) should be to Sec. 300.509 not Sec. 300.508.
Discussion: There were two typographical errors in the proposed
regulation with respect to references to other sections. In
Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508 should be to
Sec. 300.509 consistent with the prior regulatory reference. In
Sec. 300.510(d), the reference to Sec. 300.511 should be to
Sec. 300.512, also consistent with the prior regulatory reference.
The reference in Sec. 300.510(b)(vi) to written findings and
decision should be changed to be consistent with Sec. 300.509(a)(5) and
allow the choice of electronic or written findings of fact and
decision.
It is not necessary to regulate on whether hearing officers are
allowed to amend their decisions for technical errors. This matter is
left to the discretion of hearing officers and States; however, proper
notice should be given to parents if State procedures allow for
amendments and a reconsideration process may not delay or deny parents'
right to a decision within the time periods specified for hearings and
appeals.
It has been the Department's position that 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. In addition, 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. However, in light of the general decision to
remove all notes from these final regulations, Notes 1 and 2 would be
removed.
Changes: In Sec. 300.510(b)(2)(iii) the reference to Sec. 300.508
has been changed to Sec. 300.509. In Sec. 300.510(d), the reference to
Sec. 300.511 has been changed to Sec. 300.512. The reference in
Sec. 300.510(b)(2)(vi) to written findings and decision has been
changed to be consistent with Sec. 300.509(a)(5) and allow the choice
of ``electronic or written findings of fact and decision.'' Notes 1 and
2 have been removed.
Timelines and Convenience of Hearings and reviews (Sec. 300.511)
Comment: A few comments were received regarding Sec. 300.511 which
requested that (1) the 45 and 30 day timelines be specified as 45 and
30 school days; (2) it be clear that hearing officers have discretion
to deny requests for extensions of time since extensions may delay
hearings for a long time; and (3) delete Sec. 300.511(a) or change it
to make the SEA responsible for timelines.
Discussion: There is not sufficient consensus or evidence of need
to change the long-standing interpretation of the hearing and review
timelines from calendar days to ``school days.'' In addition, the
potential impact of no ``school days'' during the summer months would
make the delay in parents' access to due process hearings and decisions
unreasonable.
The use of the word ``may'' instead of ``shall'' in
Sec. 300.511(c), means that the granting of specific extensions of time
are at the discretion of the hearing or review officer. It is not
necessary to clarify that this discretion means that requests for
extensions can be denied as well as granted since this is implicit in
the regulation.
There is no need to change the regulation to reflect the State's
responsibility for compliance with timelines because in addition to the
language in this regulation, Sec. 300.600 continues to hold the State
ultimately responsible for noncompliance.
Changes: None.
Civil Action (Sec. 300.512)
Comment: A commenter pointed out that Sec. 300.512 had a few
typographical errors since the reference to Sec. 300.510(b)(2) should
be to Sec. 300.510(b)(1) and the reference to Sec. 300.510(e) should be
to Sec. 300.510(b).
Discussion: There were typographical errors in this section in the
NPRM, however the reference to Sec. 300.510(b)(2) should be to
Sec. 300.510(b) and the reference to Sec. 300.510(e) should be to
Sec. 300.510(b).
Changes: The reference to Sec. 300.510(b)(2) has been changed to
Sec. 300.510(b) and the reference to Sec. 300.510(e) has been changed
to Sec. 300.510(b).
Attorneys' Fees (Sec. 300.513)
Comment: Many commenters requested that Sec. 300.513 include the
provisions from sections 615(i)(3)(D) and (F) of the Act regarding
instances where attorneys fees are prohibited or may be reduced.
Several commenters also asked that a note be added to state that
attorneys' fees may be awarded if
[[Page 12615]]
an IEP team meeting occurs after a hearing request but before the
hearing.
Several commenters requested that the note on hearing officers be
deleted, stating that the awarding of attorneys' fees should be left to
the courts. One commenter stated that if hearing officers are allowed
to award attorneys' fees, they should be trained in, and use, the
criteria used by Federal courts in determining attorneys' fees.
One commenter also asked that Sec. 300.513(b) be deleted.
Discussion: By inserting all the statutory provisions regarding
attorneys' fees into the regulations, most of the suggestions will be
adequately addressed and additional clarity will be added.
Based upon the absence of consensus, the Department will continue
to allow maximum flexibility to States for structuring the process by
which parents who are prevailing parties under Part B of the Act may
request attorneys' fees reimbursement.
It is important to maintain paragraph (b)(1) of this section,
because the limited Federal resources under the Act should be used to
provide special education and related services and not be used to
promote litigation of disputes. Further, that paragraph has been
modified to make it clear that the prohibition against using Part B
funds for attorney's fees also applies to the related costs of a party
in an action or proceeding, such as depositions, expert witnesses,
settlements, and other related costs. In addition, a new paragraph
(b)(2) of this section has been added to clarify that the prohibition
in paragraph (b)(1) does not preclude a public agency from using funds
under Part B of the Act to conduct an action or preceding under section
615 of the Act, such as the cost of paying a hearing officer and
providing the place for conducting the action or proceeding.
In light of the general decision to remove all notes from the final
regulations under the Act, the note following this section in the NPRM
would be removed. The proposed note was merely intended to suggest that
States could choose as a matter of State law to permit hearing officers
to award attorneys' fees to parents who are prevailing parties under
Part B of the Act, and not to require that they do so, or imply that
IDEA would be the source of the authority for granting hearing officers
that role. If a State allows hearing officer's to award attorney's
fees, requirements regarding training on attorneys fees would be a
State matter.
Changes: Paragraph (b) has been revised to prohibit use of funds
provided under Part B for related costs. The regulation has been
amended to include all of the provisions of section 615(i)(3)(C)-(G) of
the Act. The note following this section has been removed.
Child's Status During Proceedings (Sec. 300.514)
Comment: Although a few commenters agreed with the provision in
Sec. 300.514(c), many commenters objected to it. Section 300.514(c)
states that if the decision in a due process hearing or administrative
appeal agrees with the parents that a change of placement is
appropriate, the decision must be treated as an agreement between the
State or local agency and the parents for purposes of maintaining the
child's placement pursuant to Sec. 300.514(a). Commenters saw this
provision as one-sided and suggested that it be limited to where there
is agreement by all the parties. In the alternative, commenters
suggested that the provision be deleted and that decisions as to
whether a hearing officer's or review official's decision constitutes
an agreement be left to the courts.
Commenters requested a definition of the term ``current
placement,'' with some suggesting that the definition include the
current location where the child receives services.
Some of the comments indicated confusion as to which proceedings
are referenced in Sec. 300.514. Commenters were unsure whether the
regulation references only the administrative and judicial due process
proceedings established by section 615 of the Act, or also the State
complaint procedures established by Secs. 300.660-300.662.
Commenters requested that when referring to parents in this
regulation, students who have reached the age of majority also be
referenced. Further clarification also was requested regarding a
parent's right to remove his or her child from the current placement
and place them elsewhere during the pendency of the applicable
proceedings if the parent believes FAPE is not being provided.
Discussion: The provisions maintaining the child's current
educational placement pending proceedings regarding a complaint is a
right afforded to parents to protect children with disabilities from
being subjected to a new program that parents believe to be
inappropriate. The provisions are intended to apply only to the due
process proceedings and the subsequent civil action, if any, brought
under section 615 of the Act, and not to the State complaint procedures
in Secs. 300.660-300.662, which are authorized by the General Education
Provisions Act. This position is consistent with the Department's prior
interpretation.
It is important to note that these provisions would only apply
where there is a dispute between the parent and the public agency that
is the subject of administrative or judicial proceedings. If there is
no such dispute that is the subject of a proceeding, then the placement
may be changed and this section does not apply.
This section does not permit a child's placement to be changed by
the public agency during proceedings regarding a complaint, unless the
parents and agency agree otherwise. While the placement may not be
changed unilaterally by the public agency, this does not preclude the
parent from changing the placement at their own expense and risk. It is
also important to note that this provision does not preclude the agency
from using its normal procedures for dealing with children who are
endangering themselves or others, including, as appropriate to the
circumstances, seeking injunctive relief from a court of competent
jurisdiction. In addition, even where there is disagreement between the
parents and the public agency, the provisions of Sec. 300.521 still
allow a hearing officer to change the placement of a child with a
disability who is substantially likely to injure self or others to an
appropriate interim alternative educational setting for not more than
45 days.
Paragraph (c) is based on long-standing judicial interpretation of
the Act's pendency provision that when a State hearing officer's or
State review official's decision is in agreement with parents that a
change in placement is appropriate, that decision constitutes an
agreement by the State agency and the parents for purposes of
determining the child's current placement during subsequent appeals.
See, e.g., Burlington School Committee v. Dept. Of Educ., 471 U.S. 359,
371 (1985); Susquentia School District v. Raelee S., 96 F.3d 78, 84
(3rd Cir. 1996); Clovis Unified v. Office of Administrative Hearings,
903 F.2d 635, 641 (9th Cir. 1990). Paragraph (c) of this section
incorporates this interpretation. However, this provision does not
limit either party's right to seek appropriate judicial review under
Sec. 300.512, it only shifts responsibility for maintaining the
parent's proposed placement to the public agency while an appeal is
pending in those instances in which the State hearing officer or State
review official determines that the parent's proposed change of
placement is appropriate.
[[Page 12616]]
The term ``current placement'' is not readily defined. While it
includes the IEP and the setting in which the IEP is implemented, such
as a regular classroom or a self-contained classroom, the term is
generally not considered to be location-specific. In addition, it is
not intended that a child with disabilities remain in a specific grade
and class pending an appeal if he or she would be eligible to proceed
to the next grade and the corresponding classroom within that grade.
There is no need to add a reference to children with disabilities
who reach the age of majority in this regulation. The transfer of
parental rights at the age of majority is discussed in another section
of the regulations, Sec. 300.517, and will not be referenced in every
other section to which it applies.
There is also no need to address the parents' ability to change the
child's placement unilaterally at their own expense since this issue is
addressed in Sec. 300.403.
Consistent with the general decision to remove all notes from these
regulations, the note would be removed.
Changes: The note has been removed.
Surrogate Parents (Sec. 300.515)
Comment: Several commenters suggested that the regulation include
clear procedures for terminating surrogate parents who do not
appropriately fulfill their responsibilities and include in those
procedures the consideration of the student's opinion. Relatedly, some
commenters recommended that the regulation state that LEAs cannot
impose sanctions or threaten sanctions if surrogate parents make
decisions the LEA opposes.
There were also comments regarding the selection of surrogate
parents. Some commenters asked that surrogates not be employees of
private agencies who are involved in the education or care of the child
since there is a potential conflict of interest where the public agency
contracts with and pays the private agencies to provide services for
the child. Another suggestion was that child welfare workers not be
surrogate parents, but that foster parents be allowed, if qualified.
One commenter agreed that representatives of the welfare system should
not be surrogate parents but believed foster care representatives
should also be barred. One commenter asked that the regulation require
public agencies to assign surrogate parents designated by a parent,
provided such persons meet the qualifications, thereby giving parents
the right to voluntarily designate a surrogate parent and rescind such
designation at any time.
Some comments also stated that Sec. 300.19(b)(2) conflicts with
Sec. 300.515 because in Sec. 300.515 the appointment of a surrogate
parent is mandatory if the child is a ward of the State, regardless of
whether the child has a foster parent who meets the ``parent'' criteria
in Sec. 300.19(b)(2). The comments recommended including an exception
from the mandate of surrogate parent appointments for any ward of the
State whose foster parent is a parent in accordance with
Sec. 300.19(b)(2).
Discussion: There is insufficient evidence of a wide-spread problem
of irresponsible surrogate parents which would require regulatory
procedures for termination. Therefore, the issue of the need for
procedures for termination of surrogates is left to the discretion of
States. There is also insufficient evidence of public agency
retaliation against surrogate parents. Since there are other civil
rights statutes and regulations that prohibit discrimination, including
retaliation, against individuals who exercise their rights under
Federal law, including the right of individuals to assist individuals
with disabilities without retaliation or coercion, there is no need to
address this issue in this regulation.
Proposed paragraph (c)(2)(i) of this section reflected the
statutory requirement at section 615(b)(2) that a surrogate parent not
be an employee of the SEA, LEA or any other agency that is involved in
the education or care of the child. It is very important that the
surrogate parent adequately represents the educational interest of the
child, and not the interests of a particular agency. In the case of
other governmental agencies, even agencies that are not involved in the
education of the child, there is the possibility of a conflict between
the interest of the child and those of the employee of the agency
because some educational decisions will have an impact on whether an
educational agency or some other governmental agency will be
responsible for paying for services for the child. In situations where
a child is in the care of a nonpublic agency that has no role in the
education of the child, however, an employee of that agency may be the
person best suited to serve as a surrogate for the child because of his
or her knowledge of the child and concern for the child's well-being
and would not, simply by virtue of his or her employment situation,
have an interest that could conflict with the interest of the child. In
such a case, that individual should not be prohibited from serving as a
surrogate as long as he or she had no other interest that conflicts
with the interest of the child and has knowledge and skills that will
ensure adequate representation of the child.
Paragraph (a) of this section requires that the public agency
ensure that the rights of the child are protected if the child is a
ward of the State. Paragraph (b) sets out that the duty includes a
determination of whether the child needs a surrogate parent and if so,
the assignment of one. The proposed regulation at Sec. 300.19(b)(2) has
been renumbered at Sec. 300.20 and now clarifies that the definition of
a parent may include a foster parent unless State law prohibits it, and
if certain other conditions are met. In situations where a child who is
a ward of the State has a foster parent who meets the definition of
parent in Sec. 300.20 and the foster parent is acting as the parent,
the public agency should determine if there is a need for a surrogate
parent, and whether further steps are necessary to ensure that the
rights of the child are protected. In most cases where the foster
parent meets the definition of a parent and is acting as the parent,
there would be no need to appoint a surrogate, unless the agency
determined that in the particular circumstances of the case a surrogate
was necessary to ensure that the rights of the child were protected.
Changes: Paragraph (c) has been amended to permit a public agency
to appoint as a surrogate an employee of a nonpublic agency that
provides only non-educational care to the child. Paragraph (d)(1) has
been deleted. Paragraph (d)(2) has been redesignated as paragraph (d)
and the reference to paragraph (d)(1) is deleted.
Transfer of Parental Rights at Age of Majority (Sec. 300.517)
Comment: There were several comments on the transfer of rights for
incarcerated youths which requested clarification whether the transfer
occurs regardless of age.
Commenters also requested clarification of what the transfer of
rights to the child means for the parent, i.e., does the parent retain
the right to any of the due process protections.
Commenters suggested that Sec. 300.517 should refer to
Sec. 300.347(c) which deals with when and how students are to be
notified of their impending transfer of rights. There was also a
request for clarification regarding parental involvement in
modifications to IEPs or placements when there is a bona fide security
or compelling penological interest.
Commenters also requested guidelines for determining if a student
cannot provide informed consent with respect
[[Page 12617]]
to his or her educational program. Some interpreted the proposed
regulation as requiring a competency determination prior to every
transfer, deemed this unreasonable, and proposed that notice to parents
is sufficient. Some recommended that the IEP team make the decision of
whether a competency assessment is required and appoint a surrogate
when the team decides the child is not able to provide informed consent
for his or her educational program. Several commenters asked why the
term ``another appropriate individual'' was used instead of ``guardian
or surrogate parent'' as defined in Sec. 300.515.
Some commenters asked that the Department allow a State which
doesn't have a law regarding transfer of rights at age of majority to
implement an interim policy pending legislative change.
Commenters also recommended that an independent advocate, not a
teacher or LEA administrator but who is paid by the LEA, be available
for each student to whom rights have transferred, to be present at all
IEP discussions when parents are not present so that coercion by the
school is prevented.
Discussion: It is not necessary to delineate the specific parental
rights that transfer under this section because the statute and
regulations fully set out the rights afforded to parents under Part B.
The statute and paragraph (a)(1) of this section allow States, under
State law, to transfer all parental rights to children with
disabilities who reach the age of majority, with the exception of the
right to notice which is both retained by the parents and transfers to
the student. For children with disabilities who are incarcerated in
adult or juvenile Federal, State or local correctional institutions,
the State, under State law, may transfer all parental rights, including
the notice rights, at the age of majority.
The IEP provisions regarding notice prior to the age of majority,
do not have to be explained or referenced in this section of the
regulations. While the requirement in Sec. 300.347(c) that beginning at
least one year before the student reaches the age of majority under
State law the IEP must include a statement that the student has been
informed of the rights that will transfer to him or her upon reaching
the age of majority, does relate to this regulation, it is separate and
distinct from the notice provisions in Sec. 300.517(a)(3) requiring
notice to the parent and child at the time of transfer--when the child
actually reaches the age of majority.
This regulation does not need to address specifically the right to
parental participation in IEP meetings for youth with disabilities
convicted as adult and incarcerated in adults prisons whose parental
rights have not transferred at the age of majority. These individuals
would have the same rights as other youth with disabilities whose
parental rights have not transferred as set out in section
Sec. 300.345. There is also no further need to address IEP and
placement requirements that do not apply to modifications of IEP or
placement for youth with disabilities convicted as an adult and
incarcerated in an adult prison because the provisions are already set
out at Sec. 300.311(c)(2).
The requirement in paragraph (a) of this section regarding State
provision for transfers of parental rights at the age of majority under
State law generally does not require a statutory change if the State
already has a State law regarding age of majority that applies to all
children (except in cases of incompetency). A State may not transfer
rights at age of majority in the absence of a State law on age of
majority that applies to all children, except those children determined
incompetent under State law.
With regard to the transfer of rights in situations where the
competency of an individual with a disability is challenged, currently,
most States have laws, rules, and procedures that allow a general
determination of incompetency for an individual with a disability who
has reached the age of majority. These laws and procedures usually
require a formal proceeding and provide for the appointment of a
general guardianship where the individual is found not to be competent
under the applicable legal standard. The transfer of the Part B
parental rights under State law must be consistent with State
competency laws, that is, where parental rights transfer to the
individual at the age of majority, and the individual is found to be
incompetent, the appointed guardian would exercise Part B rights
pursuant to their guardianship. In some States, there may be additional
laws and procedures that allow for a lesser determination of competency
for specific purposes, such as competency for providing informed
consent with respect to the individual's educational program.
The special rule at Sec. 300.517(b) only applies to States who,
under State law, allow for this lesser determination of competency--a
determination of the ability to provide informed consent with respect
to the educational program of the student. Under the provision in the
special rule that specifies appointing ``the parent, or, if the parent
is not available, another appropriate individual,'' a guardian or
surrogate parent could be an appropriate individual to represent the
educational interests of the student.
Changes: Paragraph (b) has been revised to make clear that it only
applies if a State has a State mechanism lesser competency proceedings.
Discipline in general
(For a general overview of major changes in the discipline
provisions from the NPRM to these final regulations, please refer to
the preamble.)
Comment: Several commenters asked that the regulations include only
the statutory language with respect to all provisions concerning
discipline. The vast majority of commenters, however, asked that the
regulations provide more specificity than the statute regarding
discipline. In many cases, these commenters provided proposals for how
the regulations should interpret the statute. Others asked that the
regulations give schools the ability to deal differently with children
with articulation problems and those with behavior disorders.
Discussion: Including only the statutory language on discipline in
the final regulations, would not be helpful. The vast majority of the
comments received concerning discipline demonstrate overwhelmingly the
need to regulate in order to clarify the statutory language. To rely
solely on the statutory language would encourage needless litigation.
There is no statutory basis for treating children with disabilities
differently under the discipline provisions because of the nature of
their disability.
Change: None.
Authority of school personnel (Sec. 300.520)
Comment: A number of commenters were concerned about the provisions
in the proposed regulations that required development of behavioral
assessment plans and determinations regarding manifestation after the
child had been removed for more than 10 school days in a school year
because they believed that these responses should only be required if
the removal constituted a ``change of placement.'' These commenters
asked that the term ``change of placement'' be defined in the
regulation as indicated in Note 1 to the proposed regulations, in order
to incorporate what they saw as the law's intent to allow building-
level administrators some discretion to temporarily remove a child from
their current educational placement if necessary to prevent disruption
or ensure the safety of other children. Many of these commenters asked
that
[[Page 12618]]
the regulations clarify the distinction between removal of a student
for disciplinary reasons and removal of a student for behavior
management purposes.
Some commenters supported Note 1 as it clarified that schools
continued to have the ability to remove children with disabilities from
their current placement for limited periods of time when necessary,
even though the child had previously been removed earlier that school
year. Some commenters asked who is contemplated to be making the
determination regarding a change in placement.
Some commenters proposed modifications to the change of placement
standard described in Note 1 to this section to recognize that there
could be circumstances when continued short term suspensions may be
used without reconvening the IEP team if the IEP team has addressed the
behavior through changes to the IEP or placement and agrees that
removal from the child's current educational placement is an
appropriate intervention.
Other commenters believed that the regulations should provide even
more latitude to schools about when to convene an IEP meeting to review
or develop a behavior assessment plan and conduct a manifestation
determination, when for example, the behavior occurred repeatedly, or
involved minor offenses. Some of these commenters thought that the IEP
team should have the discretion to determine the need for a behavioral
assessment or behavioral intervention plan on an individual basis.
Some commenters believed that paragraph (c) of the proposed
regulations (and similar provisions in Secs. 300.121 and 300.523(b))
exceed statutory authority by permitting school authorities to remove a
child with disabilities from the child's current educational placement
for up to 10 school days in a school year before the behavior
assessment plan, services, or manifestation determination must be done.
Many of these commenters indicated that any suspension is an indication
that the child with a disability is having problems and the school
should be required to initiate the behavioral assessment plan at the
earliest indication of difficulty. For the same reasons, these
commenters asked that the regulations not include references to
suspensions without the provision of educational services.
Some commenters basically agreed with the position taken in
paragraph (c) and Secs. 300.121 and 300.523(b) but believed that the
content of Note 2 should be strengthened by adding support for review
of the IEP for any short suspension that in the judgment of the parent
or other member of the IEP team, requires reconsideration of behavioral
interventions or other IEP revisions. Some commenters noted that
paragraph (c) needed further clarification, as school personnel cannot
reasonably be expected to predict future conduct of a child.
Discussion: The obligation to conduct a functional behavioral
assessment or to review an existing behavioral intervention plan is not
linked in the statute only to situations that constitute a ``change of
placement.'' As a policy matter, it makes a great deal of sense to
attend to behavior of children with disabilities that is interfering
with their education or that of others, so that the behavior can be
addressed, even when that behavior will not result in a change in
placement. In fact, IDEA now emphasizes a proactive approach to
behaviors that interfere with learning by requiring that, for children
with disabilities whose behavior impedes their learning or that of
others, the IEP team consider, as appropriate, and address in the
child's IEP, ``strategies, including positive behavioral interventions,
strategies, and supports to address the behavior.'' (section
614(d)(3)(B)(i)).
On the other hand, there is merit to the argument that schools
should not have to repeatedly convene IEP team meetings to address the
behavior of children who already have behavior intervention plans,
unless there is a need. The position that services and the development
of a behavioral assessment plan are not triggered if a child with
disabilities is removed from his or her current placement for 10 school
days or less in a given school year is based on the language of the
statute at section 612(a)(1)(A) and section 615(k)(1)(B), as
interpreted in light of the legislative history of the Act, which notes
that the statute was designed to ``reinforce and clarify the
understanding of Federal policy on this matter, which is currently
found in the statute, case law, regulations, and informal policy
guidance.'' (S. Rep. No. 105-17, p. 28; H.R. Rep. No. 105-95, p. 108
(1997)).
In light of the Department's longstanding position that children
with disabilities could be removed from their current educational
placement for not more than 10 consecutive school days without
educational services, the 10 day in a school year window before the
educational services and behavioral assessment plan are triggered is a
reasonable interpretation of the statute. This interpretation gives
school officials reasonable flexibility for dealing with minor
infractions of school rules by children with disabilities, yet ensures
that children with disabilities are not cut off from educational
services and that their behavior is appropriately addressed.
In order to clarify the ability of school personnel to temporarily
remove a child from the current educational placement when necessary to
ensure the safety of other children or to prevent disruption of the
learning environment, the concept of ``change of placement'' that was
referred to in Note 1 to this section in the NPRM should be
incorporated into the regulations. The Department has long interpreted
the IDEA to permit schools to remove a child with a disability from his
or her current placement when necessary, even though the child had
previously been removed earlier that school year, as long as the
removal does not constitute a ``change of placement.''
The ``change of placement'' description will also make clear that
the new statutory language at section 612(k)(1)(A) of the Act regarding
the authority of school personnel to remove children with disabilities
for not more than 10 school days, to the same extent as nondisabled
children, does not permit using repeated disciplinary removals of 10
school days or less as a means of avoiding the normal change of
placement protections under Part B. Whether a pattern of removals
constitutes a ``change of placement'' would be determined on a case by
case basis by the public agency and subject to review through due
process and judicial proceedings. The regulation concerning change of
placement would only apply to removals for disciplinary reasons.
If a child who is being removed from his or her current educational
placement has already been the subject of a special IEP team meeting to
develop a behavioral intervention plan or review its implementation,
the IEP team should not have to meet to review that plan as long as the
team members individually review the plan, unless one or more of the
team members believe that the plan needs to be modified. In this way,
the IEP team will be monitoring the implementation of the behavioral
intervention strategies in the IEP or behavioral intervention plan but
would not have to repeatedly reconvene each time removals from the
child's current placement are carried out.
In light of the comments received and the reasons previously
discussed, proposed Note 2 would be deleted.
Comments concerning the timing of manifestation determinations, and
changes made in response to those
[[Page 12619]]
comments are addressed in this attachment under Sec. 300.523.
Change: A new section Sec. 300.519 has been added regarding change
of placement in the context of removals under Secs. 300.520-300.529,
reflecting concepts from proposed note 1. Section 300.520(a)(1) has
been revised to clarify that more than one suspension each of which may
be for up to 10 school days would be permitted in a school year, as
long as repeated suspensions do not constitute a change of placement,
and the removals are consistent with treatment of similarly situated
children without disabilities. Paragraph (a)(1) of this section also
has been revised to clarify the need to provide services when a child
with a disability has been removed for more than 10 school days in a
school year. Section 300.520(b) has been revised to require, when a
child is first removed for more than 10 school days in a school year
and for subsequent removals that constitute a change in placement, an
IEP team meeting to develop a functional behavioral assessment plan and
a subsequent behavioral intervention plan or to review an existing
behavioral intervention plan and its implementation. Section 300.520(c)
has been revised to specify that if the child is subsequently removed
and that removal is not a change in placement, the IEP team does not
have to meet to review the behavioral intervention plan unless one or
more team members believes that modifications are needed to the plan or
the plan's implementation. Proposed Notes 1 and 2 have been deleted.
Comment: A number of commenters had suggestions for clarifications
of the terms used in paragraph (a). Some wanted the regulations to
specify whether days of suspension includes days of in-school
suspension, bus suspensions, or portions of a school day. Others asked
whether an in-school suspension would be considered a part of the days
of suspension if the student continued to receive the academic
instruction called for in the student's IEP during that period. Others
suggested that the term ``suspension'' be revised to specify that
school personnel can order a short term suspension of 10 or fewer
consecutive school days or cumulative days which may exceed 10 school
days in a school year but do not constitute a change in placement.
Discussion: An in-school suspension would not be considered a part
of the days of suspension addressed in paragraph (a) of this section as
long as the child is afforded the opportunity to continue to
appropriately progress in the general curriculum, continue to receive
the services specified on his or her IEP and continue to participate
with nondisabled children to the extent they would have in their
current placement. Portions of a school day that a child had been
suspended would be included in determining whether the child had been
removed for more than 10 cumulative school days or subjected to a
change of placement under Sec. 300.519.
Whether a bus suspension would count as a day of suspension would
depend on whether the bus transportation is a part of the child's IEP.
If the bus transportation is a part of the child's IEP, a bus
suspension would be treated as a suspension under Sec. 300.520 unless
the public agency provides the bus service in some other way, because
that transportation is necessary for the child to obtain access to the
location where all other services will be delivered. If the bus
transportation is not a part of the child's IEP, a bus suspension would
not be a suspension under Sec. 300.520. In those cases, the child and
his or her parents would have the same obligations to get to and from
school as a nondisabled child who had been suspended from the bus.
However, public agencies should attend to whether the behavior on the
bus is similar to behavior in a classroom that is addressed in an IEP
and whether bus behavior should be addressed in the IEP or behavioral
intervention plan for the child.
It is important that both school personnel and parents understand
that school personnel may remove a child with a disability from his or
her current placement for not more than 10 school days at a single
time, but that there is no specific limit on the number of days in a
school year that a child may be removed. (See, discussion of
Sec. 300.121 regarding when services must be provided.) However, school
authorities may not remove a child with disabilities from the child's
current educational placement if that removal constitutes a change of
placement under Sec. 300.519, unless they are specifically authorized
to do so under Sec. 300.520(a)(2) (school personnel unilateral removal
for weapons and drug offenses) or unless the parents of the child do
not object to a longer removal or the behavior is determined to not be
a manifestation of the child's disability. If a removal does constitute
a change of placement under Sec. 300.519 that is not permitted under
Sec. 300.520(a)(2), school personnel must follow appropriate change of
placement procedures, including prior parent notice, and the right of
the parent to invoke the ``stay-put'' rule of Sec. 300.513.
Change: Paragraph (a)(1) of this section is revised to specify that
school personnel may order removals of a child with a disability from
the child's current placement for not more than 10 consecutive school
days so long as the removal does not constitute a change in placement
under Sec. 300.519.
Comment: A number of commenters were concerned that the term
``carries'' in paragraph (a)(2)(i) is too narrow and wanted the
regulation to also cover the child who was in possession of a weapon at
school, including instances when the child obtained the weapon at
school. Others thought that paragraph (a)(2)(i) should apply to
situations when a child knowingly carries a weapon to school, similar
to the standard in paragraph (a)(2)(ii) regarding knowing possession or
use of illegal drugs.
Discussion: The statutory language ``carries a weapon to school or
to a school function'' is ambiguous as to whether it includes instances
in which a child acquires a weapon while at school. In light of the
clear intent of Congress in the Act to expand the authority of school
personnel to immediately address weapons offenses at school, the
Department's opinion is that this language also covers instances in
which the child is found to have a weapon at school that he or she
obtained while at school.
Change: None.
Comment: A number of commenters asked for more clarification about
the various provisions regarding removals from a child's current
placement, suspensions of 10 days or less, 45-day placements, and, for
children whose behavior is determined not a manifestation of their
disability, other disciplinary measures, including the possibility of
expulsion, related to one another. For example, some commenters asked
for specificity about whether a child could be subject to a
disciplinary suspension, including the 45-day interim alternative
educational setting placements more than once in a school year.
Some commenters asked whether the behavior assessment plan and
manifestation determination need to be done within the first 10 days of
a 45-day placement. Some asked whether schools can keep children with
disabilities in the 45-day placement even if the behavior is determined
to be a manifestation of the child's disability, or even if program
adjustments in the child's ``current placement'' are agreed on before
the expiration of the 45-day placement.
Commenters also asked how the 45-day placement rules should be
applied when the behavior leading to the removal occurs in the last few
days of the school year. A few asked how 45-
[[Page 12620]]
day placements differ from any other removal for more than 10 days or
whether 45-day placements should merely be considered exceptions to the
``stay put'' provision. Others also inquired about the total number of
days that a child with disabilities could be suspended in a year.
Others asked for clarity about whether school districts could
suspend beyond the 10 day and 45 day periods mentioned in this section
and whether children with disabilities could ever be expelled. Some
commenters asked that the regulations emphasize the optional nature of
the ability to use the 45-day placement and encourage the return of
children with disabilities to their regular educational placement at
the earliest appropriate time.
Discussion: If parents and school personnel agree about a proposed
change of placement for disciplinary reasons, the rules concerning the
amount of time that a child with a disability may be removed from his
or her educational placement in Secs. 300.520 and 300.521 do not have
to be used. However, services must be provided consistent with the
requirements of Sec. 300.121(a).
These regulations do not prohibit a child with a disability from
being subjected to a disciplinary suspension, including more than one
placement in a 45-day interim alternative educational setting in any
given school year, if that is necessary in an individual case (e.g., a
child might be placed in an alternative setting for up to 45 days for
bringing a weapon to school in the fall and for up to 45 days for using
illegal drugs at school in the spring).
If a child engages in one of the behaviors identified in
Sec. 300.520(a)(2) (carrying a weapon to school or a school function or
knowing possession or use of illegal drugs or selling or soliciting the
sale of a controlled substance at school or a school function), the
school may first remove the child for up to 10 consecutive school days
(providing services as necessary under Sec. 300.121(d)) while convening
the IEP team to determine the interim alternative educational setting
under Sec. 300.522. At the end of that 10 day period, or earlier, if
feasible, the child would be placed into the interim alternative
educational setting for up to 45 days.
The placements contemplated under Secs. 300.520(a)(2) and 300.521
(removal by hearing officer based on determination of substantial
likelihood of injury in current placement) are specific exceptions to
the obligation to maintain the child in the child's current placement
if the parent disagrees with a proposed change of placement and
therefore, may continue even if the child's behavior is determined to
be a manifestation of the child's disability. The purpose of
Secs. 300.520(a)(2) and 300.521 placements is to enable school
personnel to ensure learning environments that are safe and conducive
to learning for all and to give those officials and parents the
opportunity to determine what is the appropriate placement for the
child.
Interim alternative educational settings under Sec. 300.520(a)(2)
are limited to 45 calendar days, unless extended under Sec. 300.526(c)
for a child who would be dangerous to return to the child's placement
before the removal. The fact that school is in recess during a portion
of the 45 days does not ``stop the clock'' on the 45 days during the
school recess.
There is no specific limit on the total number of days during a
school year that a child with disabilities can be suspended. In
addition, as explained in more detail in the discussion under
Sec. 300.524, if a child's behavior is determined not to be a
manifestation of the child's disability, the child may be disciplined
in the same manner as nondisabled children, including suspension and
expulsion, except that FAPE, consistent with Sec. 300.121(d), must be
provided.
The 45-day interim alternative educational settings are not
mandatory. If the parents agree with school officials to a change in
the child's placement there is no need to use a 45-day interim
alternative educational setting. In some instances school officials or
hearing officers may determine that a shorter period of removal is
appropriate and that a child can be returned to his or her current
educational placement at an earlier time.
Change: None.
Comment: A number of commenters asked for guidance regarding the
terms in paragraph (b) regarding functional behavioral assessment, and
behavioral intervention plan. Some asked that functional behavioral
assessment should not be construed to be overly prescriptive. These
commenters believed that behavioral assessments should be flexible so
that the team can consider the various situational, environmental and
behavioral circumstances involved.
Some commenters proposed that a functional behavioral assessment be
defined as a process which searches for an explanation of the purpose
behind a problem behavior, and that behavior intervention plan be
defined as IEP provisions which develop, change, or maintain selected
behaviors through the systematic application of behavior change
techniques. Some commenters suggested that positive behavioral
interventions and strategies should include strategies and services
designed to assist the child in reaching behavioral goals which will
enhance the child's learning and, as appropriate, the learning of
others. Some asked whether a functional behavior assessment is an
evaluation requiring parent consent before it is done. Others asked
whether a behavioral assessment could be a review of existing data that
can be completed at that IEP meeting. Some asked whether a behavioral
intervention plan needed to be a component of a child's IEP, and the
relationship of this to the positive behavioral interventions mentioned
in the IEP sections of the regulations.
Discussion: In the interests of regulating only when necessary, no
change is made regarding what constitutes a functional behavioral
assessment, or a behavioral intervention plan. IEP teams need to be
able to address the various situational, environmental and behavioral
circumstances raised in individual cases. A functional behavioral
assessment may be an evaluation requiring parent consent if it meets
the standard identified in Sec. 300.505(a)(3). In other cases, it may
be a review of existing data that can be completed at the IEP meeting
called to develop the assessment plan under paragraph (b)(1) of this
section. If under Sec. 300.346 (a) and (c), IEP teams are proactively
addressing a child's behavior that impedes the child's learning or that
of others in the development of IEPs, those strategies, including
positive behavioral interventions, strategies and supports in the
child's IEP will constitute the behavioral intervention plan that the
IEP team reviews under paragraph (b)(2) of this section.
Change: None.
Comment: Some commenters stated that paragraph (b)(1) should not
require the development of appropriate behavioral interventions within
10 days of removing a child from the current placement as it is
operationally unworkable. Some commenters asked that the regulations
also require that the IEP team determine whether an existing behavior
plan has been fully implemented, and if not, take steps to ensure its
implementation without delay. Other commenters stated that the term
suspension'' in paragraph (b)(1) should be replaced with ``removal.''
Discussion: Paragraph (b)(1) in the NPRM was not intended to
require the development of appropriate behavioral interventions within
10 days of
[[Page 12621]]
removing a child from the current placement. Instead, it was intended
to require that the LEA implement the assessment plan and ensure that
the IEP team, after that assessment, develops appropriate behavioral
interventions to address the child's behavior and implements those
interventions as quickly as possible. Because it is unlikely that these
steps could occur at the same time, a change should be made to the
regulations to clarify that the LEA convene an IEP meeting, within 10
business days of removing the child, to develop an assessment plan,
and, as soon as practicable on completion of that plan, to develop
appropriate behavioral interventions to address that behavior. This
section also would be revised to clarify when the IEP team would have
to meet in instances in which there is an existing behavioral
intervention plan. The commenters are correct that the term ``removal''
should be used in paragraph (b)(1) rather than ``suspension'' because
it applies to all disciplinary actions under Sec. 300.520(a).
Change: Paragraph (b) has been amended by replacing ``suspension''
with ``removal'' and to specify that the LEA convene an IEP meeting to
develop an assessment plan, and as soon as practicable on completion of
that plan, to develop appropriate behavioral interventions to address
that behavior.
Comment: Some commenters asked that the regulations permit school
personnel, under Sec. 300.520(a)(2), and hearing officers, under
Sec. 300.521, to remove for up to 45 school days as opposed to calendar
days. Other commenters asked that the regulations use the term
``calendar days'' for all timelines in this section.
Some commenters asked that the regulations permit school personnel
to remove to a 45-day interim alternative educational setting for an
assault. Other commenters asked that the 45-day limitation not apply to
behavior that is determined to be not a manifestation of the child's
disability.
Discussion: As explained in detail in the discussion concerning the
regulatory definition of ``day,'' the statute uses the term ``school
day'' when that is intended. It also would be inappropriate to use
``calendar days'' for all timelines in this section as the statute uses
the term ``10 school days'' when that is intended.
The statute does not authorize school personnel to remove children
with disabilities to an interim alternative educational setting for 45
days in cases of an assault. However, under Sec. 300.521, a public
agency may ask a hearing officer to order a child removed to an interim
alternative educational setting for not more than 45 days if
maintaining the child in the current placement is substantially likely
to result in injury to the child or to others.
In addition, if necessary, school officials can seek appropriate
injunctive relief to move a child. The placements under
Secs. 300.520(a)(2) and 300.521 apply whether the behavior is or is not
a manifestation of the child's disability under Sec. 300.523. If the
behavior is determined not to be a manifestation of the child's
disability, the child may be subjected to the same disciplinary action
as a nondisabled child (which could be a removal for more than 45 days)
except that services must be provided consistent with Sec. 300.121(d).
Change: None.
Comment: Some commenters asked that paragraph (d) of the
regulations provide the complete definition of ``dangerous weapon'' and
``controlled substance.''
Discussion: It is not advisable to provide the complete statutory
definitions of ``dangerous weapon'' and ``controlled substance'' in the
text of the regulations as the statute ties these definitions to the
content of other Federal law. If, for example, the Controlled
Substances Act were to be amended to change the definition of
``controlled substance'' in section 202(c) of that Act, the Part B
regulatory definition also would need conforming amendments. In
addition, the definition of ``controlled substance'' in section 202(c)
of the Controlled Substances Act is extensive and extremely detailed.
The Department will make this information widely available through a
variety of other means.
Change: None.
Authority of Hearing Officer (Sec. 300.521)
Comment: Several commenters stated that the hearing officer under
this section, in order to deal with dangerous situations, must be able
to immediately remove a child without the requirement of convening a
hearing. A number of these commenters believed that the hearing officer
under this section should be able to make a determination based on a
review of available information presented by the LEA, much like an LEA
requesting a temporary restraining order from a court. Other commenters
asked that the regulations specify that the hearing officer must be
impartial and qualified to assess the child's disability and the
circumstances surrounding the removal.
Several commenters asked that the regulations explain that a school
district has the right to seek injunctive relief, such as a temporary
restraining order, when a student is a danger to self or others.
Discussion: The statute provides that the hearing officer must be
able to determine that a public agency has demonstrated by substantial
evidence, which is defined as beyond a preponderance of the evidence,
that maintaining the child in the current placement is substantially
likely to result in injury to the child or others. This evidentiary
standard requires that the hearing officer weigh the evidence received
from both parties, rather than just information presented by the public
agency. Public agencies continue to have the right to seek injunctive
relief from a court when they believe they have the need to do so.
Hearing officers in expedited due process hearings must meet the same
standards of impartiality and knowledgeability as other hearing
officers under the Act.
Change: None.
Comment: Several commenters asked that paragraph (a) of this
section be revised to specify that the injury to the child or others
must be more than a minor injury. Others asked that the regulations not
require that the child would be an imminent threat to the safety or
health of other members of the school community before the child could
be removed.
Several commenters requested that paragraph (c) be revised to
require the hearing officer to determine, rather than consider, whether
the public agency has made reasonable efforts to minimize the risk of
harm in the child's current placement. Other commenters asked that the
regulations specify that if the hearing officer finds that the current
placement is inappropriate, the hearing officer shall order that the
current placement be made appropriate rather than ordering an interim
alternative educational setting. Further, if the hearing officer finds
that the public agency has not made reasonable efforts to minimize the
risk of harm in the child's current placement, they urged, the hearing
officer must order the public agency to make the reasonable efforts to
minimize the risk of harm rather than ordering placement in an interim
alternative educational setting.
Discussion: No changes will be made to the regulations regarding
the amount of injury that would be substantially likely to result if
the child is not removed. In addition, no changes will be made
regarding a hearing officer's decision making. In fashioning
appropriate relief, hearing officers will exercise their judgement in
the context of all the factors involved in an individual case.
Change: None.
[[Page 12622]]
Comment: A number of commenters requested clarification of the term
``beyond a preponderance of the evidence.'' Others asked that the term
be revised as the ``the preponderance of the evidence'' as that is the
highest evidence standard in civil litigation.
Discussion: The phrase ``beyond a preponderance of the evidence''
is statutory.
Change: None.
Determination of Setting (Sec. 300.522)
Comment: A number of commenters asked that the regulations clarify
the relationship between the authority of school personnel in
Sec. 300.520(a)(1) to order the removal of a child with a disability
for not more than 10 school days, and the requirement in Sec. 300.522
that the alternative educational setting be determined by the IEP team.
These commenters noted that the school personnel need the authority to
remove under Sec. 300.520(a)(1) without input from the IEP team.
A number of commenters requested clarification on when the IEP team
must make the determination of setting and where the child would be
while that determination was being made, particularly for children with
disabilities who already had been removed from their regular placement
for 10 days during that school year. Some of these commenters noted
that when a child is removed under Secs. 300.520(a)(2) or 300.521 the
alternative setting needs to be immediately available.
Some commenters question where the child would be while the hearing
under Sec. 300.521 is being held, noting that Sec. 300.521(d) requires
the hearing officer's determination include deciding whether the
interim alternative educational setting meets the standards of
Sec. 300.522, and wondering when the IEP team would meet. Some
commenters asked that the regulations make clear that a child with a
disability can be removed from the child's current placement for up to
10 days before the IEP team would have to make the determination in
Sec. 300.522.
Some commenters stated that requiring the IEP team to determine the
setting when a hearing officer removes a child exceeds the statute.
Other commenters thought that the provisions of Sec. 300.522 are in
conflict with the authority of school personnel to order removal under
Sec. 300.520.
Discussion: Under Secs. 300.519 and 300.520(a)(1), school personnel
have the authority to remove a child with disabilities for not more
than 10 consecutive school days (to the same extent as for nondisabled
children) except that the removal may not constitute a change of
placement. School personnel need the ability to remove a child with a
disability from the current educational placement under
Sec. 300.520(a)(1) and to provide educational services in some other
setting without waiting for an IEP team to make a determination about
that alternative educational setting in order to maintain a learning
environment conducive to learning for all children.
At the same time there is a need to ensure that information about
the child's special education needs and current IEP be brought to bear
in decisionmaking about services to the child during short removals and
for those short periods before the IEP team can meet to determine
appropriate placement under Sec. 300.520(a)(2) or a hearing officer
determines the interim alternative educational setting under
Sec. 300.521. Therefore, a change should be made to Sec. 300.522(a) to
specify that the IEP team determines the interim alternative
educational setting under Sec. 300.520(a)(2).
A change to Sec. 300.121(d) would specify that school personnel, in
consultation with the child's special education teacher, determine the
interim alternative educational setting for removals under
Sec. 300.520(a)(1)(removals by school personnel for 10 school days or
less). A child whose behavior subjects him or her to an interim
alternative educational setting under Sec. 300.520(a)(2)(weapons or
drugs) or Sec. 300.521(substantial likelihood of injury), may first be
removed by school personnel for not more than 10 consecutive school
days, or until the removal otherwise constitutes a change of placement
under Sec. 300.519, and during that 10 day or less removal, services,
as necessary under Sec. 300.121(d), would be provided as determined by
school personnel, in consultation with the child's special education
teacher. This will ensure that the need of school personnel to be able
to make these decisions swiftly is honored, while emphasizing the
learning needs of the child in that removal period. While the child is
in that 10 school day or less setting, the IEP team meetings and
expedited due process hearings under Secs. 300.522 and 300.521,
respectively, can be conducted so that the IEP team or hearing officer,
as the case may be, can determine the up to 45 day interim alternative
educational setting.
When a hearing officer has determined that a child is substantially
likely to injure self or others in his or her current placement and is
ordering a 45 day interim alternative educational setting under
Sec. 300.521, the hearing officer is charged with determining whether
the interim alternative educational setting meets the statutory
requirements and not with selecting one that meets those requirements.
Permitting the school personnel, in consultation with the child's
special education teacher, to initially select and propose the interim
alternative educational setting is less administratively cumbersome for
school personnel than the scheme in the proposed regulation and helps
ensure that there is no undue delay in placement. The review of the
proposed placement by the hearing officer ensures that the setting will
meet statutory standards, thus protecting the rights of the child. The
hearing officer may revise or modify the proposed placement, or select
some other placement as necessary to meet that statutory standard. Of
course, in proposing an interim alternative educational setting, school
personnel may rely on the judgments of the child's IEP team if they
choose to do so. This position would be accomplished through the
regulatory change to Sec. 300.121(d) mentioned previously. The statute
at section 615(k)(3)(A) is clear that when school personnel are
removing a child for a weapons or drug offense, the IEP team determines
the interim alternative educational setting.
Change: This section has been amended to specify that the
alternative educational setting referred to in Sec. 300.520(a)(2) is
determined by the IEP team. Section Sec. 300.521(d) has been revised to
recognize that the hearing officer reviews the adequacy of the interim
alternative educational setting proposed by school personnel who have
consulted with the child's special education teacher.
Comment: A number of commenters suggested revisions to paragraph
(b) to provide certain limitations on the services that must be
provided in the interim alternative educational setting such as
specifying that the setting must be one that is immediately available
to students removed, the services on the child's current IEP will
continue to the extent feasible, or the child will continue to
participate in the general curriculum to the extent determined
appropriate by the IEP team. Others urged that the regulations make
clear that the interim alternative educational setting should not have
to be a setting that can provide all the same level of courses or
courses that are not a part of the core curriculum of the district
(i.e., would not have to provide honors level courses, electives,
advanced subject courses that are not part of the core
[[Page 12623]]
curriculum of the district) or are extracurricular activities and
sports. Others asked about classes such as chemistry, shop or physical
education that have specialized equipment or facilities. Some
commenters noted that it would not be reasonable and would be
prohibitively expensive and procedurally burdensome to require that
interim alternative education settings provide the same courses as
offered in regular schools. They argued that requiring that interim
alternative educational settings include the same courses as in regular
schools would discourage schools from taking appropriate measures to
deal with weapons, drugs and children who are dangerous to themselves
or others. Some commenters stated that they did not believe that the
services required for students whose behavior is not a manifestation of
their disability should be as extensive as those required for students
whose behavior is determined to be a manifestation of their disability.
Some commenters asked that the regulations specify that services in
the interim alternative educational setting must be provided by
qualified personnel in a placement that is appropriate for the
student's age and level of development. Others asked that the IEP
written for the interim alternative educational setting should address
the services and modifications that will enable the child to meet the
child's current IEP goals in the alternative setting.
Discussion: The statute describes the services that must be
provided to a child who has been placed in an interim alternative
educational setting, which must be applied to removals under
Secs. 300.520(a)(2) and 300.521, and these standards, with a minor
modification discussed later in this section, are reflected in
Sec. 300.522(b). The proposed regulation, at Sec. 300.121(c), had
indicated that the same standards should be applied to other types of
removals as well, that is, removals that did not constitute a change in
placement and long-term suspensions or expulsions under Sec. 300.524
for behavior that is determined not to be a manifestation of a child's
disability. However, as suggested by the comments received, there are
reasons why what would be required for these other types of removals
may be different than for 45 day interim alternative educational
settings. Therefore, the regulation at Sec. 300.121(d) would provide
that for removals under Secs. 300.520(a)(1) and 300.524, the public
agency provides services to the extent necessary to enable the child to
adequately progress in the general curriculum and advance toward
achieving the goals set out in the child's IEP, as determined by school
personnel, in consultation with the child's special education teacher,
if the removal is under Sec. 300.520(a)(1) or by the child's IEP team,
if the removal is under Sec. 300.524.
Under these rules, the extent to which instructional services need
to be provided and the type of instruction to be provided would depend
on the length of the removal, the extent to which the child has been
removed previously, and the child's needs and educational goals. For
example, a child with a learning disability who is placed in a 45 day
placement will likely need far more extensive services in order to
progress in the general curriculum and advance appropriately toward
meeting the goals of the child's IEP than would a child who is removed
for only a few days, and is performing at grade level. Because the
services that are necessary for children with disabilities who have
been removed for disciplinary reasons will vary depending on the
individual facts of a particular case, no further specificity regarding
those services is appropriate.
What constitutes the general curriculum is determined by the SEA,
LEA or school that the student attends, as appropriate under State law.
In some cases, honors level classes or electives are a part of the
general curriculum, and in others they may not be. With regard to
classes such as chemistry or auto mechanics that generally are taught
using a hands-on component or specialized equipment or facilities, and
that are considered to be a part of the general curriculum, there are a
variety of available instructional techniques and program modules that
could be used that would enable a child to continue to progress in the
general curriculum, although the child is not receiving instruction in
the child's normal school or facility. However, in order to assist in
clarifying that a school or district does not have to replicate every
aspect of the services that a child would receive if in his or her
normal classroom, a change would be made to refer to enabling the child
to continue to ``progress in'' the general curriculum, rather than
``participate in'' the general curriculum.
Changes: Paragraph (b) has been revised to apply to removals under
Secs. 300.520(a)(2) and 300.521. Paragraph (b)(1) has been revised to
refer to enabling the child to continue to ``progress in'' the general
curriculum. Language has been added to Sec. 300.121(d) to provide that
for a child who has been removed under Sec. 300.520(a)(1) or
Sec. 300.524, the public agency provides services to the extent
necessary to enable the child to adequately progress in the general
curriculum and advance toward achieving the goals set out on the
child's IEP, as determined by school personnel in consultation with the
child's special education teacher if the removal is under
Sec. 300.520(a)(1) or by the child's IEP team if the removal is under
Sec. 300.524.
Comment: Several commenters asked that the statutory language in
paragraph (b)(2) requiring that the interim alternative educational
setting address the child's behavior ``so that it does not recur'' be
replaced with language requiring the LEA to develop a program that
attempts to prevent the inappropriate behavior from recurring.
Other commenters asked that a note be added to emphasize that the
interim alternative educational setting be designed to ensure FAPE and
to evaluate the behavior, the IEP services provided, and the previous
placement and to develop an IEP that will reduce the recurrence of the
behavior. Some commenters asked that the reference to other behavior in
this paragraph be rephrased to limit it to other current relevant
behavior. Others asked that the reference to days in a given school
year be removed.
Discussion: In order to provide additional clarity on this point, a
change should be made to specify that those services and modifications
are designed to prevent the inappropriate behavior from recurring. In
light of the changes previously discussed that limit the application of
this section to removals under Secs. 300.520(a)(2) and 300.521, the
reference to other behavior would be removed, as these are now
addressed in Sec. 300.121(d).
Change: Paragraph (b)(2) has been revised to clarify that it
applies to removals under Secs. 300.520(a)(2) and 300.521 and to
specify that the services and modifications to address the behavior are
designed to prevent the behavior from recurring.
Comment: A number of commenters requested that the regulations
specify that home instruction could not be used as an interim
alternative educational setting. Others asked that the regulations
clarify that an interim alternative educational placement may be any
placement option, including, but not limited to home instruction.
Others asked for clarification of when home instruction would be an
appropriate placement for a child who is subject to disciplinary
action. Some commenters asked that the regulations specify that home
instruction and independent study would not generally be an interim
[[Page 12624]]
alternative educational setting. Others asked that home instruction be
prohibited as an interim alternative educational setting unless the
parents agree. Some commenters asked for guidance on what could be
considered an appropriate interim alternative educational setting for
rural or remote areas where there is only one school and no other
appropriate public facility.
Discussion: Whether home instruction would be an appropriate
alternative educational setting under Sec. 300.522 would depend on the
particular circumstances of an individual case such as the length of
the removal, the extent to which the child previously has been removed
from their regular placement, and include consideration of the child's
needs and educational goals. (The proposed note following Sec. 300.551
regarding home instruction would be deleted.) In general, though,
because removals under Secs. 300.520(a)(2) and 300.521 will be for
periods of time up to 45 days, care must be taken to ensure that if
homebound instruction is provided for removals under Sec. 300.522, the
services that are provided will satisfy the requirements for a removal
under Sec. 300.522(b).
Change: None.
Comment: Some commenters asked that a provision be added to
Sec. 300.522 to specify that a hearing officer considering an interim
alternative educational setting may modify the setting determined by
the IEP team to meet the requirements of paragraph (b) of this section.
Discussion: Hearing officers have the ability to modify the interim
alternative educational setting that has been proposed to them as
necessary to meet the standards of enabling the child to continue to
participate in the general curriculum, continue to receive those
services and modifications that will enable the child to meet the goals
on the child's current IEP and include services and modifications
designed to address the behavior so that it does not recur. As
previously explained, these final regulations do not require an IEP
team to propose an interim alternative educational setting to a hearing
officer under Sec. 300.521, although school districts are encouraged to
use the child's IEP team to make decisions about the interim
alternative educational setting that is proposed to the hearing
officer.
Change: None.
Manifestation Determination Review (Sec. 300.523)
Comment: A number of commenters expressed concern about paragraph
(b) of this section. On the one hand, a number of the commenters asked
that the reference to ``in a given school year'' be struck so that the
provision would permit no manifestation determination review whenever
the removal did not amount to a change of placement. On the other hand,
other commenters thought there was no basis in the statute for any
exception, and that a manifestation review would need to be conducted
whenever discipline was contemplated for a child with a disability.
Some commenters asked that the exception be expanded to include
situations when the child's IEP includes the use of short term
suspensions as an appropriate intervention, or where the IEP team has
otherwise addressed in the IEP the behavior that led to the removal.
Some commenters stated that paragraph (a)(1) should refer to procedural
safeguards under Sec. 300.504 rather than procedural safeguards under
this section. Other commenters noted that advance notification of
disciplinary action is unrealistic and that the regulations should note
that fact. Others asked that the regulations specify that prior written
notice was not required.
Discussion: A manifestation determination is important when a child
has been removed and that removal constitutes a change of placement
under Sec. 300.519. If a removal is a change of placement under
Sec. 300.519, a manifestation determination will provide the IEP team
useful information in developing a behavioral assessment plan or in
reviewing an existing behavioral intervention plan under
Sec. 300.520(b). It will also inform determinations of whether or not a
public agency may implement a disciplinary action that constitutes a
change of placement for a child, other than those provided for in
Secs. 300.520(a)(2) and 300.521. Requiring a manifestation
determination for removals for less than 10 consecutive school days
that are not a change of placement under Sec. 300.519, would be of
limited utility and would impose unnecessary burdens on public agencies
as the determination often would be made after the period of removal
was over. Furthermore, limiting manifestation determination to removals
that constitute a change of placement under Sec. 300.519 is consistent
with the statutory language of section 615(k)(4)(A).
However, if a child is being suspended for subsequent short periods
of time, parents can request an IEP meeting to consider whether the
child is receiving appropriate services, especially if they believe
that there is a relationship between the child's disability and the
behavior resulting in those suspensions. Public agencies are strongly
encouraged to grant any reasonable requests for IEP meetings.
Functional behavioral assessments and behavioral intervention plans are
to be completed in a timely manner whether required under
Sec. 300.520(b) or otherwise determined appropriate by the child's IEP
team (see Sec. 300.346(a)(2)(i)). In addition, if a child is
subsequently suspended for short periods of time, a parent or other
individual could question whether a change of placement, which would
require a manifestation determination, has occurred because of an
alleged pattern of removals.
For clarity, a change should be made to refer to the procedural
safeguards notice under Sec. 300.504. Paragraph (a)(1) of this section
does not require prior written notice. It does require notice to
parents no later than the date on which the decision to take the action
is made. To that extent, it constitutes a limited exception to the
requirement to provide prior written notice in Sec. 300.503. Other
removals that do not constitute a change of placement do not require
prior written notice.
Change: Paragraph (a) of this section has been revised to specify
that the manifestation determination review is done regarding behavior
described in Secs. 300.520(a)(2) and 300.521 or any removal that
constitutes a change of placement under Sec. 300.519. Paragraph (a)(1)
of this section has been amended to require that parents be provided
notice of procedural safeguards consistent with Sec. 300.504. Paragraph
(b) has been removed.
Comment: A number of commenters requested clarification of the term
``other qualified personnel'' as used in proposed paragraph (c) of this
section. Some of these commenters asked that the regulations include
language like that in the note following Sec. 300.344 that in the case
of a child whose behavior impedes the learning of the child and others,
the IEP team should include someone knowledgeable about positive
behavioral strategies and supports. Others asked that the term not be
interpreted as including only school personnel but should include
persons familiar with the child and the child's disabilities, such as
the child's treating physician. Others wanted the regulations to
specify that the team include persons who are fully trained and
qualified to understand the child's disability. Many asked that term
also be added to references to the IEP team in proposed paragraphs (d),
(e) and (f) of this section. Some commenters asked that proposed
paragraph (c) clarify that the manifestation determination needs
[[Page 12625]]
to be made at an IEP meeting, as some districts are not holding IEP
team meetings for this purpose.
Discussion: The language regarding the IEP team and other qualified
personnel is taken directly from the statute. The term ``other
qualified personnel'' may include individuals who are knowledgeable
about how a child's disability can impact on behavior or on
understanding the impact and consequences of behavior, and persons
knowledgeable about the child and his or her disabilities. For the sake
of clarity, references to the IEP team in paragraphs (c) and (d) of
this section should be expanded to include ``and other qualified
personnel.'' In order to clarify that the manifestation determination
review is done in a meeting, a change should be made to paragraph (b).
This review involves complex decision making that will be significantly
different from the very limited review that is done under
Sec. 300.520(b)(2) if no modifications are needed to a child's
behavioral intervention plan.
Change: Redesignated paragraph (b) has been revised to specify that
the manifestation determination review is conducted at a meeting.
Redesignated paragraphs (c) and (d) have been amended by adding ``and
other qualified personnel'' after ``IEP team'' each time it is used.
Comment: Several commenters were concerned that proposed paragraph
(d)(2)(ii) and (iii) put schools at a significant disadvantage by
having to prove the negative--that disability did not impair the
ability of the child to understand the impact and consequences of the
behavior and that disability did not impair the child's ability to
control behavior. Other commenters asked that the review process also
include consideration of any unidentified disability of the child and
the antecedent to the behavior that is subject to discipline and permit
record expungement if it is later determined that the child did not
commit the act that is the subject of the manifestation determination.
Some commenters stated that proposed paragraph (e) created too
rigid a standard and asked that it be modified to give districts more
leeway if a mistake has been made.
Discussion: The language in paragraphs (c)(2)(ii) and (iii) is
taken directly from the statute. Given that the review process includes
consideration of all relevant information, including evaluation and
diagnostic results, information supplied by the parents, observations
of the child and the child's current IEP and placement, the review
could include consideration of a previously unidentified disability of
the child and of the antecedent to the behavior that is subject to
discipline. If it is later determined that the child did not commit the
act that is subject to discipline, the question of record expungement
would be handled the same way such matters are addressed for
nondisabled children.
The interpretation in paragraph (d) on how the manifestation
determination is made, using the standards described in paragraph (c),
is based on the explanation of the decision process in the
congressional committee reports on Pub. L. 105-17. Those reports state
that the determination described in Sec. 300.523(d):
. . . 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. (S. Rep. No. 105-17, p. 31; H. Rep. No.
109-95, pp. 110-111 (1997))
In light of the general decision to remove all notes from these final
regulations, however, Note 1 should be removed.
Change: Note 1 has been removed.
Comment: Many commenters asked that the content of the first
sentence of Note 2 be integrated into the regulations. The commenters
were divided, however, over the second sentence of Note 2. Some
supported the statement in the second sentence of the note, others
wanted the sentence to be revised to specify that children with
disabilities who have been placed in 45 day placements under
Secs. 300.520 and 300.521 must be returned to their regular placement
if their behavior is determined to be a manifestation of their
disability because of the principle that children with disabilities may
not be disciplined for behavior that is a manifestation of their
disability.
Still others wanted the sentence revised to indicate that changes
to the child's IEP or placement or the implementation of either
``could'' as opposed to ``often should'' enable the child to return to
the regular placement. Other commenters asked that the second sentence
to Note 2 be removed as they believed that it was inconsistent with the
authority granted in Secs. 300.520 and 300.521 to change the placement
of a child with a disability to an 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. Other
commenters asked that the regulations make clear that if behavior is a
manifestation of the child's disability, disciplinary action cannot be
taken against the child.
Discussion: For clarity, the regulation should specify that if the
behavior is determined to be a manifestation of the child's disability,
the public agency must take immediate steps to remedy any deficiencies
found in the child's IEP or placement or their implementation. It would
be inconsistent with the public agency's obligation to ensure the
provision of FAPE to children with disabilities to fail to take
appropriate action to correct identified deficiencies in a child's IEP
or placement or the implementation of either.
The 45-day placements in Secs. 300.520(a)(2), 300.521 and
300.526(c) are exceptions to the general rule that children with
disabilities may not be disciplined through a change of placement for
behavior that is a manifestation of their disability. If a child has
been placed in a 45-day placement under one of these sections and his
or her behavior is determined to be a manifestation of the disability
under Sec. 300.523, it may be possible to return the child to the
current educational placement before the expiration of the up to 45-day
period by correcting identified deficiencies in the implementation of a
child's IEP or placement. However, public agencies are not obliged to
return the child to the current placement before the expiration of the
45-day period (and any subsequent extensions under Sec. 300.526(c)) if
they do not choose to do so.
Consistent with the general decision to remove all notes from these
final regulations, Note 2 would be removed.
Change: A new paragraph has been added to clarify that if
deficiencies are identified in the child's IEP or placement or in their
implementation, the public agency must act to correct those
deficiencies. Note 2 has been removed.
Comment: Some commenters asked that the regulations provide
distinctions between the types of services that must be provided in
interim alternative educational settings when behavior is and is not a
manifestation of the child's disability. For children whose behavior is
not a manifestation of their disability, these commenters asked that
FAPE be
[[Page 12626]]
defined as the LEA's ``core curriculum'' (the basic courses needed to
fulfill high school graduation requirements) unless the IEP team
determined that some more extensive services are required, so that it
would be clear that the LEA would not have to duplicate every possible
course offering at the alternative site. The commenters asked that this
rule also apply to the services provided to children who have properly
been long-term suspended or expelled for behavior that is determined
not to be a manifestation of disability.
For children whose behavior is determined to be a manifestation of
disability, these commenters asked for clarification that an IEP team
can still take disciplinary action, if the IEP team feels that
providing consequences is appropriate. In addition, they asked that the
regulations make clear that an IEP team can change a student's
placement for behavior that is a manifestation of the disability, if
taking such action would be appropriate and consistent with the
student's needs.
Discussion: A manifestation determination is necessary to determine
whether the placement for a child with a disability can be changed over
the objections of the child's parents through a long-term suspension
(other than the 45-day placement addressed in Secs. 300.520, 300.521
and 300.526(c)) or an expulsion. However, there is no basis in the
statute for differentiating the services that must be provided to
children with disabilities because their behavior is or is not a
manifestation of their disability. (See discussion of comments for
Secs. 300.121 and 300.522 for further discussion about services during
periods of disciplinary removal).
Under section 504 of the Rehabilitation Act of 1973, if the
behavior is a manifestation of a child's disability, the child cannot
be removed from his or her current educational placement if that
removal constitutes a change of placement (other than a 45 day
placement under Secs. 300.520(a)(2), 300.521, and 300.526(c)), unless
the public agency and the parents otherwise agree to a change of
placement. If the behavior is related to the child's disability, proper
development of the child's IEP should include development of
strategies, including positive behavioral interventions, strategies and
supports to address that behavior, consistent with
Secs. 300.346(a)(2)(i) and (c). If the behavior is determined to be a
manifestation of a child's disability but has not previously been
addressed in the child's IEP, then the IEP team must meet to review and
revise the child's IEP so that the child will receive services
appropriate to his or her needs. Implementation of the behavioral
strategies identified in a child's IEP, including strategies designed
to correct behavior by imposing consequences, is appropriate under the
IDEA and section 504, even if the behavior is a manifestation of the
child's disability. However, if a child's IEP includes behavioral
strategies to address a particular behavior of the child, the
appropriate response to that behavior almost always would be to use the
behavioral strategies specified in the IEP rather than to implement a
disciplinary suspension. A change in placement that is appropriate and
consistent with the child's needs may be implemented subject to the
parent's procedural safeguards regarding prior notice (Sec. 300.503),
mediation (Sec. 300.506), due process (Secs. 300.507-300.513) and
pendency (Sec. 300.514).
Change: None.
Comment: Several commenters noted that a manifestation review
should not be required prior to determining punishment for incarcerated
students because prison disciplinary infractions raise bona fide
security and compelling penological interests that are outside the
purview of the education staff. However, commenters noted that a
manifestation review for these students may be useful in developing
appropriate behavior interventions.
Discussion: Section 614(d)(6)(B) of the Act provides that for
children with disabilities who are convicted as adults under State law
and incarcerated in an adult prison, the child's IEP team may modify
the child's IEP or placement if the State has demonstrated a bona fide
security or compelling penological interest that cannot otherwise be
accommodated. (See also Sec. 300.311(c)(1)). A manifestation
determination would still be required for these individuals, in the
instances specified in paragraph (a) of this section.
Change: None.
Comment: Several additional notes were proposed. Several commenters
asked that a note be added to clarify that when a student with
disabilities has been properly expelled, the student does not have to
petition for readmission when the period of expulsion ends as the
school system must accept and serve the student in its schools. Others
asked for a note specifying that under section 504 of the
Rehabilitation Act children with disabilities may not be disciplined
for behavior that is a manifestation of their disability, and that
prior to taking any punitive action against a child with a disability,
appropriate personnel must determine that the behavior in question is
not a manifestation of the child's disability.
Discussion: No new notes will be added. All notes are being removed
from these final regulations. Whether a student who has been properly
expelled must petition for readmission when the period of expulsion
ends generally will depend on how the public agency deals with children
without disabilities who return to school after a period of expulsion.
However, public agencies are reminded that for children with
disabilities, they have an ongoing obligation to make a FAPE available,
whether the child is expelled or not. Under Section 504 of the
Rehabilitation Act of 1973, children with disabilities may not be
disciplined for behavior that is a manifestation of their disability if
that disciplinary action constitutes a change of placement. That
principle is consistent with the changes made in this section.
Change: None.
Determination That Behavior Was Not Manifestation of Disability
(Sec. 300.524)
Comment: Some commenters asked that the regulations make clear that
if the behavior was not related to the child's disability the
discipline could include long-term suspensions and expulsions. Others
asked that the regulations clarify whether discipline would be limited
to the 45-day interim alternative educational placement or would be the
same disciplinary measures as for nondisabled students as long as FAPE
is provided and IEP services continued in another setting. Others
thought that the regulation should specify that no suspension or
expulsion could be for more than 45 days. Some commenters asked for
clarification of what would constitute an acceptable alternative
setting for children whose behavior is determined to not be a
manifestation of their disability.
Several commenters requested that the regulations delete the
provisions of paragraph (c) of this section concerning placement
pending a parent appeal of a manifestation determination and the note
following, which addresses paragraph (c). Others stated that the
regulations should specify that if parents challenge a manifestation
determination, the child should remain in the alternative educational
setting until the resolution of that challenge. Still others asked that
the note mention that under Sec. 300.514, placement could change if the
parent and agency agreed to that other placement.
Discussion: Under this section, if a determination is made
consistent with Sec. 300.523 that a child's behavior is not
[[Page 12627]]
a manifestation of his or her disability, the child may be subject to
the same disciplinary measures applicable to nondisabled children,
including long-term suspensions and expulsions, except that FAPE must
be provided consistent with section 612(a)(1) of the Act. In these
instances, the disciplinary removal from a regular placement could be
as long as the disciplinary exclusion applied to a nondisabled child,
and need not be limited to a 45-day interim alternative educational
placement, except that appropriate services must be provided to the
child. To make the point more clearly that if the behavior is
determined not to be a manifestation of the child's disability, that
child may be subjected to long-term suspension and expulsion with
appropriate services. To clarify what would constitute an acceptable
alternative setting for a child if the child's behavior is determined
to not be a manifestation of his or her disability, the reference in
paragraph (a) of this section has been changed to refer to
Sec. 300.121(c), which implements that statutory provision.
Section 615(j) of the Act provides that the only exceptions to the
``pendency'' rule (Sec. 300.514) are those specified in section
615(k)(7) of the Act, concerning placement during parent appeals of 45-
day interim alternative educational placements, which is implemented by
Sec. 300.526. Paragraph (c) of this section merely reflects that
statutory arrangement. Section 300.526 governs a child's placement if a
parent challenges a manifestation determination while a child is in a
45-day interim alternative educational placement under
Secs. 300.520(a)(2) or 300.521. Section 300.514 makes clear that
placement may change if the agency and parent agree on an alternative
placement while a due process hearing is pending on other issues.
Changes: The reference to section 612(a)(1) of the Act in paragraph
(a) is replaced with a reference to Sec. 300.121(c), paragraph (c) is
revised to refer to the placement rules of Sec. 300.526, and the note
is removed.
Parent Appeal (Sec. 300.525)
Comment: Some commenters asked that the regulations specify that
parents must request a hearing in writing under this section. Other
commenters asked that the regulations make clear that any hearing
requested under this authority must be expedited, rather than
suggesting that only those hearings when the parent requests an
expedited hearing.
Some commenters wanted the regulations to reflect that mediation
was an alternative to the expedited hearing procedure and encourage
parents to seek mediation before an expedited hearing. Some asked that
the regulations make clear that a parent's request for an expedited
hearing would not apply to removals for less than 10 days and would not
negate the discretion of school districts to use alternative judicial
remedies, such as temporary restraining orders. Some commenters noted
that paragraph (a)(1) of this section should be revised to apply only
to placements made pursuant to the discipline provisions of the Act,
and not other placement issues under the Act.
Several commenters asked that proposed paragraph (b)(2) of this
section be revised to make clear that the standard of Sec. 300.521 that
is to be applied to 45-day placements under Sec. 300.520(a)(2) is the
``substantial evidence'' standard and does not include the
``substantially likely to result in injury'' test or other program
factors in Sec. 300.521, so as not to damage the new ability of school
districts to move students for up to 45 days for certain offenses
related to weapons and drugs.
Discussion: The statute does not specify that parents request a
hearing in writing under the appeal procedures in this section. The
statute provides for expedited hearings in three circumstances, and
those are reflected in Secs. 300.521, 300.525, and 300.526. Mediation
is always encouraged as an alternative to a due process hearing, and
Sec. 300.506(a) makes clear that mediation must be available whenever a
hearing is requested under the provisions of Secs. 300.520-300.528.
Under the statute, it seems clear that a parent's right to an expedited
hearing is limited to placements pursuant to the discipline provisions
of the Act and not to other placement issues, such as disputes about
the adequacy of a child's current placement (unless raised in the
context of a manifestation issue).
In addition, since the statute refers to decisions regarding
placement, rather than to disciplinary actions, a parent's right to an
expedited hearing is limited to disciplinary situations involving a
change of placement, which would occur if a child were removed from the
child's current placement for more than 10 school days at a time or if
there were a series of removals from the child's current educational
placement in a school year as described in Sec. 300.519. A parent's
request for an expedited due process hearing does not prevent a school
district from seeking judicial relief, through measures such as a
temporary restraining order, when necessary.
The provisions of paragraph (b) of this section are statutory.
Section 615(k)(6)(B)(ii) does not refer solely to the ``substantial
evidence'' test in section 615(k)(2)(A), but to all the ``standards''
in section 615(k)(2)(Sec. 300.521 of these regulations).
Changes: Paragraph (a)(1) has been changed to refer to any decision
regarding placement under Secs. 300.520-300.528.
Placement During Appeals (Sec. 300.526)
Comment: Several commenters requested that paragraph (a) of this
section be amended by specifying that a parent's appeal of a hearing
officer decision must be heard by another hearing officer. Some
commenters thought that LEAs should not be required to seek expedited
hearings for students that remain a danger after 45 days and sought a
simplified procedure for extensions of the 45-day placement.
Others thought that the possibility of an extension of an interim
alternative educational placement because a child remains dangerous
should be limited to a one-time extension that would require the
hearing officer to determine that there were no programmatic changes,
related services or supplemental aids or services that could be used to
mitigate the dangerousness of the original placement. These commenters
thought that any further efforts to keep the student in an alternative
placement should be heard by a court. Some commenters asked that the
note be deleted or modified by requiring, for example, that for an
extension the hearing officer consider whether the school district has
created delays or otherwise not acted in good faith. A few commenters
asked that any time an agency sought to extend an interim alternative
education placement because of continued dangerousness, the agency
first conduct a formal evaluation of the child.
Discussion: It is not necessary to change the regulation to specify
that a parent's appeal of a hearing officer's decision must be heard by
another hearing officer, as it would violate the basic impartiality
requirement of Sec. 300.508(a)(2) to permit a hearing officer to hear
the appeal of his or her prior decision. Under paragraph (b) of this
section, unless shortened as the result of a hearing officer's decision
consistent with paragraph (a) of this section, a child would remain in
the interim alternative educational setting pursuant to
Secs. 300.520(a)(2) or 300.521 for the period of the exclusion (which
may be up to 45 days).
If the public agency proposes to change the child's placement at
the end
[[Page 12628]]
of that interim alternative educational placement and the child's
parents request a due process hearing on that proposed change of
placement, the child returns to the child's placement prior to the
interim alternative educational setting at the end of that interim
placement, except as provided in paragraph (c) of this section. The
expedited hearing procedure set forth in paragraph (c) of this section
is drawn from the statute, which contemplates the same standards for
these expedited hearings as for those under Sec. 300.521.
There is no statutory limit on the number of times this procedure
may be invoked in any individual case, and none is added to the
regulation. If, after a 45-day extension of an interim placement under
paragraph (c) of this section, an LEA maintains that the child is still
dangerous and the issue has not been resolved through due process, the
LEA may seek subsequent expedited due process hearings under paragraph
(c)(1) of this section. However, in light of the decision to remove all
notes from the regulations, the note would be removed.
Changes: A new paragraph (c)(4) has been added to make clear that
the procedure in paragraph (c) may be repeated, if necessary. The note
has been removed.
Protection for Children not yet Eligible for Special Education and
Related Services (Sec. 300.527)
Comment: A number of commenters expressed concern that the
statutory language that was reflected in paragraph (b) of this section
was too broad and thought that reasonable restrictions should be added
so that the issue of whether a ``basis of knowledge'' existed would not
have to be litigated for almost any child who was subjected to
disciplinary action.
With respect to paragraph (b)(1), some commenters requested that
written parent concerns should be addressed to the director of special
education, other special education personnel of the agency, or the
child's teacher rather than to noninstructional personnel or personnel
not normally charged with child find responsibilities. Other commenters
asked that paragraph (b)(1) make clear that the parental expression of
concern must be more than a casual observation or vague statement and
must describe behavior indicative of a disability or reflect the need
for a special education evaluation. Other commenters asked for
specificity about how the determination about parents' English literacy
would be determined and asked that parental illiteracy in English be
rephrased as being unable to write.
Some commenters asked that paragraph (b)(2) clarify the type,
severity, or degree of behavior or performance that would demonstrate
the need for services under the Act. For example, some asked that the
behavior or performance of the child would have to include
characteristics consistent with a category of disability under
Sec. 300.7 of the regulations. Others asked that this provision be
revised to require observation and documentation of the child's
performance or behavior demonstrating the need for special education
services by personnel who regularly work with the child.
Some commenters requested that various sections of paragraph (b) be
time-limited to actions within the past year. Others asked that all of
paragraph (b) be limited to actions that have occurred within the
preceding two school years.
With respect to paragraph (b)(4) of this section, many commenters
asked that the regulations make clear that casual communications
between agency personnel would not meet this standard. Some thought
that the agency personnel covered by this provision should be limited
to those providing regular or special education to the child reporting
concern to agency personnel who are normally responsible for initiating
the special education evaluation process. Others asked that expressions
of concern by appropriate agency personnel be a written expression of
the child's need for a special education evaluation. Some noted that
without the addition of reasonable limitations, this provision would
undermine responsible efforts, such as pre-referral strategies, to
limit identification of children for special education.
Some commenters asked that paragraph (b) make clear that an agency
would not be considered to have a ``basis of knowledge'' merely because
a child is receiving services under some other program such as Title 1
of the Elementary and Secondary Education Act, a State- or locally-
developed compensatory education program, or consistent with Section
504 of the Rehabilitation Act of 1973. Others asked that the
regulations specify that if an evaluation has been done and a child
found ineligible for special education, that evaluation and
determination would not constitute a ``basis of knowledge'' under
paragraph (b). Others asked that agencies be able to demonstrate that
they responsibly addressed an expression of concern and concluded that
the available data were sufficient to determine that there was no
reason to evaluate the child.
Discussion: In light of these comments, some changes would be made
to paragraph (b) of this section. With respect to paragraph (b)(1) of
this section, it is important to keep in mind that child find is an
important activity of school districts under the Act and all of the
staff of a school district should be at least aware enough of this
important school function that, whatever their role in the school, if
they receive a written expression of concern from a parent that a child
is in need of special education and related services, a referral to
appropriate school child find personnel should be made. Parents should
not be held accountable for knowing who in a school is the proper
person to contact if they are concerned that their child might need
special education. On the other hand, the statute makes clear that the
parental expression of concern must include enough information to
indicate that their child is in need of special education and related
services. The statutory provision expects that parents provide their
expressions of concern in writing if they are able to and does not
mention a particular language. Rather than refer to illiteracy; which
may have a variety of interpretations, the regulations should refer to
the parent not knowing how to write.
In paragraph (b)(2) of this section, the behavior or performance of
the child sufficient to meet this standard should be tied to
characteristics associated with one of the disability categories
identified in the definition of child with a disability in order to
remove unnecessary uncertainty about the type, severity, or degree of
behavior or performance intended. Child find is an important function
of schools and school districts.
School personnel should be held responsible for referring children
for evaluation when their behavior or performance indicates that they
may have a disability covered under the Act. Limiting paragraph (b)(2)
to instances in which personnel who regularly work with the child have
recorded their observation of a child's behavior or performance that
demonstrates a need for special education would inappropriately omit
those situations in which public agency personnel should have acted,
but failed to do so.
Requested changes regarding time limitations on the standards in
paragraph (b) are not adopted. However, if as a result of one of the
forms of notice identified in this paragraph, a public agency has
either determined that the child was not eligible after conducting an
evaluation or determined that an
[[Page 12629]]
evaluation was not necessary, and has provided appropriate notice to
parents of that determination consistent with Sec. 300.503, the public
agency would not have a basis of knowledge under this paragraph because
of that notice. For example, if as the result of a parent request for
an evaluation, a public agency conducted an evaluation, determined that
the child was not a child with a disability, and provided proper notice
of that determination to the parents, the agency would not have a basis
of knowledge because of that parent request for an evaluation.
If the parents disagreed with the eligibility determination
resulting from that evaluation, they would have the right to request a
due process hearing under Sec. 300.507. If the parents requested a
hearing, the protections of this part would apply. If they did not
request a hearing and the child subsequently engaged in behavior that
violated any rule or code of conduct of the public agency, including
behavior described in Secs. 300.520 or 300.521, and there was no
intervening event or action that would independently constitute a basis
of knowledge under paragraph (b), the public agency would not be deemed
to have knowledge (of a disability). In such a case, consistent with
paragraph (c), the parents could request an expedited evaluation, but
the public agency could subject the child to the same disciplinary
measures applied to children without disabilities engaging in
comparable behavior. An addition would be made to this section. In
order to clarify that if an agency responsibly addresses the behavior
or performance of a child or an expression of concern about that
behavior or performance the agency's knowledge of that behavior,
performance or expression of concern, does not preclude the agency from
subjecting the child to the same disciplinary measures applied to
children without disabilities who engage in comparable behaviors.
In order to provide clarity to the content of paragraph (b)(4), a
change has been made to that provision. Public agencies should not be
held to have a basis for knowledge that a child was a child with a
disability merely because the child's teacher had expressed concern
about the child's behavior or performance that was unrelated to whether
the child had a disability. This provision would therefore be modified
to refer to expressions of concern to other agency personnel who have
responsibilities for child find or special education referrals in the
agency.
The changes described in this discussion in regard to paragraph
(b)(2) and (b)(4) would clarify that a public agency will not be
considered to have a basis of knowledge under paragraph (b) of this
section merely because a child receives services under some other
program designed to provide compensatory or remedial services or
because a child is limited-English proficient. If the child is eligible
under section 504 and not the IDEA, discipline would have to be
consistent with the requirements of section 504.
Changes: A technical change has been made to paragraph (a) to refer
to paragraph (b) of this section rather than ``this paragraph.'' The
parenthetical language in paragraph (b)(1) has been replaced with the
following statement: ``(or orally if the parent does not know how to
write or has a disability that prevents a written statement).''
Language is added to paragraph (b)(2) to clarify that the behavior or
performance is in relation to the categories of disability identified
in Sec. 300.7; and paragraph (b)(4) has been revised to refer to other
personnel who have responsibilities for child find or special education
referrals in the agency. Paragraph (c) has been redesignated as
paragraph (d) and a new paragraph (c) has been added to provide that if
an agency acts on one of the bases identified in paragraph (b),
determines that the child is not eligible, and provides proper notice
to the parents, and there are no additional bases of knowledge under
paragraph (b) that were not considered, the agency would not be held to
have a basis of knowledge under Sec. 300.527(b).
Comment: Some commenters thought that paragraph (c) of this section
in the NPRM implied that a regular education child is entitled to some
placement while eligibility is being determined, and thought that
whether these students receive services while eligibility is being
determined should be left to the States. Others asked that the
regulations specify that the phrase ``educational placement'' in
proposed paragraph (c)(2)(ii) includes a suspension or expulsion
without services, while others thought that any disciplinary action
should be put on hold until the evaluation was completed. Others asked
that parents be involved in decisions about the child's educational
placement under this provision.
Some commenters thought that more guidance should be provided about
an appropriate timeline for an expedited evaluation. Others asked that
an expedited evaluation when an agency had conducted an evaluation
within the past year could be reviewing those results and determining
whether other assessments would need to be conducted. Other commenters
wanted the regulations to make clear that a parent would have the right
to an independent educational evaluation if the parent disagrees with
the evaluation results and to the standard appeal rights and that a
court could enjoin improper exclusion during the pendency of the
evaluation and appeal process.
Discussion: Redesignated paragraph (d) of this section does not
require the provision of services to a child while an expedited
evaluation is being conducted, if the public agency did not have a
basis for knowledge that the child was a child with a disability. An
educational placement under paragraph (d)(2)(ii) in those situations
can include a suspension or expulsion without services, if those
measures are comparable to measures applied to children without
disabilities who engage in comparable behavior. Of course, States and
school districts are free to choose to provide services to children
under this paragraph.
There is no requirement that a disciplinary action be put on hold
pending the outcome of an expedited evaluation, or that the child's
parents be involved in placement decisions under paragraph (d)(2)(ii).
No specific timeline for an expedited evaluation is included in the
regulations, as what may be required to conclude an evaluation will
vary widely depending on the nature and extent of a child's suspected
disability and the amount of additional information that would be
necessary to make an eligibility determination. However, the statute
and regulation specify that the evaluation in these instances be
``expedited'', which means that an evaluation should be conducted in a
shorter period of time than a normal evaluation. As Sec. 300.533 makes
clear, in some cases, an evaluation may be conducted based on a review
of existing data.
With regard to an expedited evaluation, a parent's right to an
independent educational evaluation if they disagree with the results of
that evaluation and to normal appeal rights of that expedited
evaluation are not affected by this section. Courts have the ability to
enjoin improper exclusion of children from educational services in
appropriate circumstances.
Changes: Language has been added to paragraph (d)(2)(ii) to make
clear that an educational placement under that provision may include
suspension or expulsion without educational services.
Expedited due Process Hearings (Sec. 300.528)
Comment: Some commenters supported the time frames proposed for
[[Page 12630]]
expedited due process hearings in light of the need to get prompt
resolution of the various issues that are subject to these hearings. A
number of commenters expressed concern about being able to meet the
timelines proposed in paragraph (a) and suggested that the expedited
hearing timeline be set at some longer time such as 10 school days, 15
calendar days, 20 business days, or 20 school days, so that an orderly
hearing could be conducted, the parties' rights protected, and a well-
reasoned and legally sufficient decision could be rendered.
Some commenters thought that this section should refer to
``expedited hearings'' rather than ``expedited due process hearings.''
Others noted the obligation of a hearing officer to schedule the
hearing quickly so that a decision could be reached within the time
frame. Some commenters asked that a provision be added to specify that
if a decision was not rendered within the time frame, the child would
remain in the alternative placement until the decision was issued,
while others asked that the child be returned to the regular placement
if the decision were not issued within that time frame.
Some commenters were concerned that the provision proposed in
paragraph (b) not be read to reduce rights available to children and
parents under the law, and asked that a statement be added to the
regulation to specify that in no instance should the protections
afforded the student and parent under the Act be reduced.
Some commenters asked that paragraph (c) provide an expedited
appeal process as well in light of the statutory emphasis on quick
resolution of disputes about disciplinary actions. Some commenters
asked that the regulations make clear that appeals of disputes under
Secs. 300.520-300.528 are to a State level review officer, if a State
has a two-tier due process system, and not to another due process
hearing officer.
Discussion: Because of concerns that in some States it will not be
possible to conduct an orderly hearing and develop a well-reasoned,
legally sufficient decision within a 10 business day timeline, the
specific time limit would be removed and replaced with a requirement
that States establish a timeline for expedited due process hearings
that meet certain standards--it must result in written decisions being
mailed to the parties in less than 45 days, with no extensions of time
that result in a decision more that 45 days from the date of the
request for a hearing, and it must be the same period of time, whether
the hearing is requested by a public agency or parent. This will allow
States to develop a rule that is fairly applied to both parents and
school districts and is best suited to their particular needs and
circumstances.
The regulations refer to expedited due process hearings rather than
expedited hearings to make clear that the procedural protections in
Secs. 300.508 and 300.509 are to be met. With regard to the hearings
provided for in section 615(k)(2) of the Act (Sec. 300.521 of the
regulations), the Committee reports accompanying Pub. L. 105-17 refer
to the hearings as ``expedited due process hearings.'' (S. Rep. No.
105-17, p. 31, H.R. Rep. No. 105-95 p. 111 (1997)) In addition, the
evidentiary standard specified in the statute for hearings under
Secs. 300.521 and 300.526(c) requires consideration of evidence
presented by both sides to a dispute, which rules out hearings which do
not permit each side an equal opportunity to present evidence.
Permitting a different standard to apply to expedited hearings on
parent appeals under Sec. 300.526(a) would be unfair to public
agencies. If a decision is not reached within the time frame specified,
the child's placement would be determined based on the other rules
provided in these regulations. For example, if a school district had
requested a hearing for the purpose of demonstrating that a child was
substantially likely to injure themselves or others if the child
remained in the current placement, the child could be removed from his
or her current placement for not more than 10 school days pending the
decision of the hearing officer, unless the child's parents and the
public agency agreed otherwise. (Sec. 300.519).
If the child were in a 45-day interim alternative educational
setting and the parents appealed that determination, the child would
remain in that setting until the expiration of the 45 days or the
hearing officer's decision, whichever occurs first. (Sec. 300.526(a)).
If the child's parents oppose a proposed change of placement at the end
of a 45-day interim alternative educational setting, under
Sec. 300.526(b), the child returns to the child's prior placement at
the end of the interim placement, unless through another hearing and
decision by the hearing officer under Sec. 300.526(c), the interim
alternative educational setting is extended for an additional period of
time, not to exceed 45 days for each expedited hearing requested under
Sec. 300.526(c).
Paragraph (b) of this section is designed to make clear that while
a State must insure that expedited due process hearings must meet the
requirements of paragraph (a) of this section, the State may alter
other State-imposed procedural rules from those it uses for hearings
under Sec. 300.507. This rule will ensure that the basic protections
regarding hearings under the Act are met, while enabling States to
adjust other procedural rules they may have superimposed on due process
hearings in light of the expedited nature of these hearings.
No specific expedited appeal process is specified in the Act, and
none is added by these regulations. However, States should be able to
choose to adopt an expedited appeal procedure if they wish, including,
in States that have a two-tier normal due process procedure,
establishing a one-tier expedited hearing procedure (i.e., expedited
hearings conducted by the SEA) so that parties resort directly to a
State or Federal court, rather than appeal through a State-level appeal
procedure. Therefore, a change should be made to the regulation to
clarify that an appeal of an expedited due process hearing must be
consistent with Sec. 300.510.
Changes: A technical change has been made to paragraph (a)(2) to
refer to Sec. 300.509 rather than Sec. 300.508. Paragraph (a)(1) has
been deleted and a new paragraph (b) has been added to provide that
each State establish a timeline for expedited due process hearings that
results in a written decision being mailed to the parties within 45
days, with no extensions permitted that result in decisions being
issued more than 45 days after the hearing request; and to require that
decisions be issued in the same period of time, whether the hearing is
requested by a parent or an agency. Paragraphs (a)(2) and (a)(3) have
been redesignated as paragraphs (a)(1) and (a)(2) and paragraphs (b)
and (c) have been redesignated as paragraphs (c) and (d). Redesignated
paragraph (d) has been revised to specify that expedited due process
hearings are appealable consistent with the Sec. 300.510. A
modification has been made to Sec. 300.526(a) regarding these appeals.
Referral to and Action by Law Enforcement and Judicial Authorities
(Sec. 300.529)
Comment: Several commenters asked that paragraph (a) be modified to
clarify that reporting crimes to law enforcement authorities not
circumvent the school's responsibilities under IDEA to appropriately
evaluate and address children's behavior problems that are related to
their disabilities in a timely manner. Other commenters requested that
procedural safeguards similar to those in Secs. 300.520-300.528 be
[[Page 12631]]
incorporated into this section that would apply whenever an agency
makes a report of a crime by a child with a disability, including
conducting a manifestation determination on the relationship of the
behavior to the disability, applying the 10- and 45-day timelines to
any criminal or juvenile filing, notice to parents, and the right of
parents to appeal decisions and request due process. Some commenters
stated that any referral to juvenile or law enforcement authorities
should trigger notice to parents of the referral.
Several commenters requested that the regulations specify that the
Act also permits school officials to press charges against a child with
a disability when they have reported a crime by that student.
One commenter asked that paragraph (a) be modified to require that
a police report include a statement indicating that the student is in a
special education program and identify a contact person who can provide
additional information to appropriate authorities on request.
Discussion: Paragraph (a) of Sec. 300.529 does not authorize school
districts to circumvent any of their responsibilities under the Act. It
merely clarifies that school districts do have the authority to report
crimes by children with disabilities to appropriate authorities and
that those State law enforcement and judicial authorities have the
ability to exercise their responsibilities regarding the application of
Federal and State law to crimes committed by children with
disabilities. The procedural protections that apply to reports of a
crime are established by criminal law, not the IDEA. Of course, it
would be a violation of Section 504 of the Rehabilitation Act of 1973
if a school were discriminating against children with disabilities in
how they were acting under this authority (e.g., if they were only
reporting crimes committed by children with disabilities and not
committed by nondisabled students).
The Act does not address whether school officials may press charges
against a child with a disability when they have reported a crime by
that student. Again, school districts should take care not to exercise
their responsibilities in a discriminatory manner.
With regard to indicating that a student is a special education
student and identifying a contact person who can provide appropriate
information to authorities to whom a crime is reported, as explained
more fully in the discussion on Sec. 300.529(b), under the
confidentiality requirements of these regulations (see, e.g.,
Sec. 300.571) and those of the Family Educational Rights and Privacy
Act (FERPA) (20 U.S.C. 1232g), personally identifiable information
(such as a student's status as a special education student) can only be
released with parental consent except in certain very limited
circumstances.
Changes: None.
Comment: A number of commenters asked that paragraph (b) of this
section include a reference to the requirements of FERPA and note that
public agencies must insure the confidentiality of records such as the
special education and disciplinary records referred to in this section.
Some asked that a provision be added making clear that a release to law
enforcement authorities could only be made pursuant to the requirements
of FERPA. Others asked whether this provision constituted an exception
to disclosure of education records under FERPA, and if so, that the
regulations make this clear. Some commenters noted that disclosure of
education records would be a significant burden on schools and that it
contradicts existing confidentiality and disclosure requirements. Some
commenters were concerned that other agencies would not maintain these
records in a way that would protect the often very sensitive
information that they contain.
Discussion: Under sections 612(a)(8) and 617(c) of the Act, the
Secretary is directed to take appropriate action, in accordance with
FERPA to assure the confidentiality of personally identifiable
information contained in records collected or maintained by the
Secretary and by SEAs and LEAs (see Secs. 300.127, and 300.560-
300.577). The provisions of section 615(k)(9)(B) of the Act as
reflected in paragraph (b) of this section must be interpreted in a
manner that is consistent with the requirements of FERPA, and not as an
exception to the requirements of that law. In other words, the
transmission of special education and disciplinary records under
paragraph (b) of this section is permissible only to the extent that
such transmission is permitted under FERPA.
If section 615(k)(9)(B) of the Act were construed to require, or
even permit, disclosures prohibited by FERPA, it arguably would violate
the equal protection rights of children with disabilities to be
protected against certain involuntary disclosures to authorities of
their confidential educational records to the same extent as their
nondisabled peers. To avoid this unconstitutional result, this
statutory provision must be read consistent with the disclosures
permitted under FERPA for the education records of all children.
FERPA would permit disclosure of the special education and
disciplinary records mentioned in Sec. 300.529(b) only with the prior
written consent of the parent or a student aged 18 or older, or where
one of the exceptions to FERPA's consent requirements apply. (See also,
Sec. 300.571). For example, disclosure of special education and
disciplinary records would be permitted when the disclosure is made in
compliance with a lawfully issued subpoena or court order if the school
makes a reasonable attempt to notify the parent of the student of the
order or subpoena in advance of compliance. (34 CFR 99.31(a)(9)). This
prior notice requirement allows the parent to seek protective action
from the court, such as limiting the scope of the subpoena or quashing
it. Prior notice is not required when the disclosure is in compliance
with certain Federal grand jury or other law enforcement subpoenas. In
these cases, the waiver of the advance notification requirement applies
only when the law enforcement subpoena or court order contains language
that specifies that the existence or the contents of, or the
information furnished in response to, such subpoena or court order
should not be disclosed. (34 CFR 99.31(a)(9)(ii)). Additionally, under
FERPA, if the disclosure is in connection with an emergency and
knowledge of the information is necessary to protect the health or
safety of the student or other individuals (34 CFR 99.31(a)(10) and
99.36), disclosure may be made without parental consent. In addition,
schools may disclose education records without consent if a disclosure
is made pursuant to a State statute concerning the juvenile justice
system and the system's ability to effectively serve, prior to
adjudication, the student whose records are released. The State statute
must create an information sharing system, consisting only of State and
local officials, that protects against the redisclosure of a juvenile's
education records. (34 CFR 99.31(a)(5) and 99.38). For additional
information on the juvenile justice system provision and other
provisions under FERPA, refer to the U.S. Department of Education/U.S.
Department of Justice publication entitled Sharing Information: A Guide
to the Family Educational Rights and Privacy Act and Participation in
Juvenile Justice Programs. The publication can be downloaded from the
Family Policy Compliance Office's web site: www.ed.gov.office/OM/fpco
In some instances, however, the Part 300 regulations are more
restrictive than FERPA. For example, the Part 300
[[Page 12632]]
regulations in the past prohibited disclosures without parent consent
to outside entities that FERPA would permit. (See proposed
Sec. 300.571(a) limiting disclosures without consent to officials of
participating agencies collecting or using the information under IDEA
and requiring consent before information is used for any purpose other
than meeting IDEA requirements.) Section 615(k)(9)(B) of the Act now
eliminates, with regard to children with disabilities who are accused
by schools of crimes, IDEA restrictions on the sharing of information
that is permissible under FERPA.
Except in certain limited situations, information from special
education and disciplinary records may be disclosed only on the
condition that the party to whom the information is disclosed will not
disclose the information to any other party without the prior consent
of the parent. (34 CFR 99.33). This procedure should be sufficient to
ensure that those other parties maintain the records in a manner that
will protect the confidentiality of that information.
Changes: Paragraph (b) of this section has been amended to make
clear that copies of a child's special education and disciplinary
records may be transmitted only to the extent that such transmission is
permitted under FERPA. Section 300.571 has been amended to note the
exception of this section.
Comment: Some commenters asked that the regulations provide further
clarification about the disclosure of information described in
paragraph (b) by, for example, clarifying whether a request from a law
enforcement official is needed before a transfer, whether the LEA would
be permitted to determine the most appropriate official to receive the
records, and if all or part of the record is transmitted. Others asked
that the regulations specify that the records be transferred within a
short period of time so that they would be available for consideration
in decisions about the student's case or that some limitations be
imposed on what is transferred, such as records covering the past year,
or ``relevant'' records.
Some commenters asked that the regulations impose some limitations
on this responsibility by defining ``appropriate authorities,''
``special education record,'' and ``disciplinary record.'' Others asked
that the regulations require SEAs to develop procedures regarding the
disclosure of education records to the appropriate authorities when
LEAs report a student's criminal activity because States' juvenile law
and criminal law enforcement systems are different.
A few commenters asked that the agency reporting a crime be
responsible for ensuring that the child continues to receive FAPE in
accordance with the child's IEP with consultation with law enforcement,
judicial authorities, or any other agency responsible for the education
of incarcerated youth.
Discussion: As explained in the prior discussion, FERPA limits the
extent to which disclosure of special education and disciplinary
records would be permitted. The circumstances that determine whether
records may be transmitted generally will determine whether a specific
request from a law enforcement official would need to be made, to whom
the records would be transmitted and the extent of the information
provided. In light of the fact-specific nature of the analysis
required, no specific definitions of terms used in paragraph (b) are
provided. The requirements of FERPA and its implementing regulations at
34 CFR Part 99 provide more specific guidance. The agency that is
responsible to ensure that a child receives FAPE when the child has
been accused of a crime and is in the custody of law enforcement and
judicial authorities will be determined by State law.
Changes: None.
Procedures for Evaluation and Determination of Eligibility
Initial Evaluation (Sec. 300.531)
Comment: A few commenters requested that this section be revised to
clarify that parents may request an initial evaluation, and some
requested that public agencies be required to conduct an initial
evaluation upon parent request. A few commenters requested that the
regulation be revised to require that, upon parent request, an initial
evaluation include new testing in all areas of suspected disability,
even if a determination is made, under Sec. 300.533(a), that no
additional data are needed. A few commenters requested that the
regulation be revised to specify the types of indicators, such as a
psychiatric hospitalization, that trigger the requirement that a child
be evaluated for possible disability.
Other commenters requested that the regulation be revised to
clarify that initial evaluations are distinct from reevaluations, and
to require that initial evaluations be ``comprehensive,'' and include a
complete full and individual evaluation of the child in all areas of
suspected disability. A few commenters requested that Sec. 300.531 be
linked with Sec. 300.532(g), to make clear that a ``full and individual
initial evaluation'' under Sec. 300.531 means a comprehensive
evaluation in all areas of suspected disability.
Discussion: The child find provisions of Sec. 300.125 require that
a public agency ensure that any child that it suspects has a disability
is evaluated. Under both prior law and these regulations, if a parent
requests an initial evaluation, the public agency must either: (1)
provide the parents with written notice of the agency's proposal to
conduct an initial evaluation if the agency suspects that the child has
a disability and needs special education and related services; or (2)
provide the parents with written notice of the agency's refusal to
conduct an initial evaluation if it does not suspect that the child has
a disability. The parent may challenge such a proposal or refusal by
requesting a due process hearing.
If a group decision is made under Sec. 300.533(a) that no
additional data are needed as part of an initial evaluation, the public
agency is not required to conduct additional assessment as part of the
initial evaluation; however, the parents may challenge that decision by
initiating a due process hearing.
The child find provisions in section 612(a)(3) and in these
regulations at Sec. 300.125 require that all eligible children be
identified, located and evaluated, and it is not necessary to establish
additional requirements regarding specific circumstances that trigger
an agency's responsibility to evaluate a child.
Any initial evaluation or reevaluation of a child with a disability
must meet the requirements of Sec. 300.532; therefore, a child with a
disability must, as part of any initial evaluation or reevaluation, be
assessed in all areas of suspected disability (Sec. 300.532(g)).
However, as provided in Sec. 300.533(a) and explained above, the public
agency may not need to conduct assessment procedures to obtain
additional data in one or more areas of suspected disability depending
on what data are already available regarding the child.
Changes: None.
Comment: A few commenters requested that the regulations be revised
to provide guidelines for State timelines for completing initial
evaluations.
Discussion: This issue is addressed in the discussion regarding
Sec. 300.342.
Changes: None.
Evaluation Procedures (Sec. 300.532)
Comment: Some commenters requested that the regulation be revised
to require that all tests and other evaluation materials and procedures
that are used to assess a child, including nonstandardized tests, be
validated for the specific purpose for which they are
[[Page 12633]]
used and administered by trained and knowledgeable personnel in
accordance with any instructions provided by the producer of the tests.
Other commenters asked that the regulation be revised to require
that tests and other evaluation procedures be selected and administered
so as not to be discriminatory on a disability basis, and to prohibit
use of tests if there is controversy in the literature about a test's
validity for use with children with a particular disability unless a
local validation study has been conducted for the particular disability
that the child is suspected to have. A few commenters requested that
the regulation specify that evaluations that are conducted verbally
should use the language normally used by the child and not the language
used by the parents, if there is a difference between the two.
A few commenters requested that the regulation be revised to
require that public agencies collect information regarding a child's
learning style(s) and needed methodologies as part of an evaluation,
because such information is critical in formulating appropriate
instructional methods to promote the child's learning. A few commenters
requested that the regulation be revised to require that three
individuals from different disciplines evaluate each child. A few
commenters requested that the regulation be revised to clarify that
tests and other materials used in evaluating each child must include a
full range of diagnostic techniques, including observations and
interview. A few commenters requested that Sec. 300.532(g) be revised
to require a comprehensive evaluation for all students, regardless of
their area of suspected disability, and a functional behavioral
assessment for each child who exhibits behavior that impedes learning.
A few commenters requested that the regulation be revised to
require that initial evaluations and reevaluations address all of the
special factors that IEP teams must consider under Sec. 300.346(a)(2).
A few commenters asked that the regulation be revised to require that
evaluations provide information to enable public agencies to comply
with the requirements of Sec. 300.534(b)(1), which requires that a
child not be determined to be a child with a disability if the
determinant factor is a lack of instruction in reading or math.
A few commenters requested that paragraphs (d), (e), and (f), and
Notes 1, 2, and 3, be deleted because they exceed the requirements in
the statute.
A few commenters were concerned that Note 2 does not address the
broad array of unique circumstances in which it may be necessary, for
communication or other disability-specific reasons, to seek out an
appropriate evaluator who is not on the staff of the public agency.
A few commenters raised concerns about valid assessment of Native
American children who are either Navajo-dominant speakers or bilingual.
They expressed particular concern regarding the limitations of
standardized written instruments in assessing children who speak
Navajo, which is a predominantly oral language, and asked for guidance
as to how Bureau of Indian Affairs schools will meet the requirements
in Sec. 300.532 regarding standardized assessment tools.
A few commenters were concerned that the reference in Note 3 to
administration of assessment components by persons whose qualifications
do not meet standard conditions would appear to ``give permission'' for
the use of unqualified assessment personnel, and requested that this
reference be deleted from the note. Other commenters asked that Note 3
be deleted because it inappropriately implies that IDEA permits public
agencies to conduct assessments under ``substandard'' conditions.
Several commenters requested that the substance of all of the notes
in the NPRM be incorporated into the text of the regulations, or that
the notes be deleted in their entirety.
Discussion: The provisions of Sec. 300.532(c) regarding
requirements for standardized tests are consistent with section
614(b)(3)(B), which limits applicability of those requirements to
standardized tests. The selection of appropriate assessment instruments
and methodologies is appropriately left to State and local discretion.
A public agency must ensure that: (1) the IEP team for each child
with a disability has all of the evaluation information it needs to
make required decisions regarding the educational program of the child,
including the consideration of special factors required by
Sec. 300.346(a)(2); and (2) the team determining a child's eligibility
has all of the information it needs to ensure that the child is not
determined to be a child with a disability if the determinant factor is
a lack of instruction in reading or math, as required by
Sec. 300.534(b)(1). It is not, therefore, necessary to establish an
additional requirement that evaluations address the requirements of
Sec. 300.346(a)(2) or Sec. 300.534(b)(1).
Paragraphs (d), (e), and (f) were all among the provisions included
in the regulations as in effect on July 20, 1983, and are unaffected by
the IDEA Amendments of 1997.
In evaluating each child with a disability, it is important for
public agencies to ensure that the evaluation is sufficiently
comprehensive to identify all of the child's special education and
related services needs, including any needs the child has that are
commonly linked to a disability category other than the disability in
which the child has been classified. Further, public agencies must
ensure that the services provided to each child under this part are
designed to meet all of the child's identified special education and
related services needs, and not those resulting only from the
disability area in which the child has been initially classified.
As proposed Note 1 indicated, under Title VI of the Civil Rights
Act of 1964: (1) in order to properly evaluate a child who may be
limited English proficient, a public agency should assess the child's
proficiency in English as well as the child's native language to
distinguish language proficiency from disability needs; and (2) an
accurate assessment of the child's language proficiency should include
objective assessment of reading, writing, speaking, and understanding.
Both Title VI and Part B require that a public agency ensure that
children with limited English proficiency are not evaluated on the
basis of criteria that essentially measure English language skills.
Sections 300.532 and 300.534(b) require that information about the
child's language proficiency must be considered in determining how to
conduct the evaluation of the child to prevent misclassification. In
keeping with the decision to eliminate all notes from the final
regulations, however, Note 1 has been removed. The text of Sec. 300.532
has been revised to require that assessments of children with limited
English proficiency must be selected and administered to ensure that
they measure the extent to which a child has a disability and needs
special education, and do not instead measure the child's English
language skills.
Proposed Note 2 explained that paragraphs (a)(1)(i) and (2)(ii)
when read together require that even in situations where it is clearly
not feasible to provide and administer tests in the child's native
language or mode of communication for a child with limited English
proficiency, the public agency must still 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. In some
situations, there may be
[[Page 12634]]
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. In that case a public agency could
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. This information will be useful to
school districts in meeting the requirements of the regulations, but
consistent with the general decision to remove all notes, Note 2 would
be removed.
An assessment conducted under non standard conditions is not in and
of itself a ``substandard'' assessment. As proposed Note 3 clarified,
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. A provision has been added to the
regulation to make this point.
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. Again, while the proposed
note provided clarifying information on the regulatory requirements, in
keeping with the general decision to eliminate notes, Note 3 would be
removed.
The provisions of the Act and Sec. 300.532, as revised to include a
provision regarding the use of nonstandard assessments, are sufficient
to ensure that the provisions of the regulation are appropriately
implemented for Navajo children, and no further changes are needed.
Changes: Section 300.532 has been revised to require that
assessments of children with limited English proficiency must be
selected and administered to ensure that they measure the extent to
which a child has a disability and needs special education, and do not,
instead, measure the child's English language skills.
A provision has been added to Sec. 300.532 to require that 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, must be included in the
evaluation report. Notes 1, 2, and 3 have been removed.
A provision has been added to Sec. 300.532 to require that the
assessment be sufficiently comprehensive to identify all of a child's
special education and related services needs. A change also has been
made to Sec. 300.300 clarifying that services provided to each child
must be designed to meet all the child's identified special education
and related services needs.
Paragraph (b) has been revised consistent with section 614(b)(2) of
the Act, to clarify that information about enabling the child to be
involved in and progress in the general curriculum or for a preschool
child to participate in appropriate activities may assist in
determining both whether the child has a disability and the content of
the child's IEP.
Determination of Needed Evaluation Data (Sec. 300.533)
Comment: A few commenters requested that the regulation or a note
clarify that it is expected that typically some new tests or
assessments will be required as part of reevaluations. A number of
commenters were concerned that, absent more specific requirements
mandating the use of additional assessments, public agencies would rely
on outdated assessment information regarding the needs of children with
disabilities, especially since the needs of children with disabilities
may change significantly over time, and some requested that the
regulations be revised to define a maximum ``age'' for data that a
public agency may rely upon as part of an evaluation. A few other
commenters were concerned that the required IEP team participants often
would not have the appropriate qualifications and expertise to judge
the validity of existing data and to determine what if any additional
data are needed.
A few others requested that the regulation be revised to require
that a public agency collect additional data to determine whether a
child continues to be a child with a disability, unless the agency
obtains signed, informed parent consent to not collect such additional
data, and that States be required to report on the number of such
parent ``waivers.'' Other commenters requested that the regulation or
note clarify that the provisions of Sec. 300.533(c) apply only to the
portion of a reevaluation that addresses whether a child continues to
be a child with a disability, and not the portion that addresses the
child's needs for special education and related services.
A few commenters requested that parents be required to justify any
request for additional assessment data. A few other commenters
requested that public agencies be required to inform parents of their
right to request additional assessments to determine whether their
child has a disability.
A few commenters thought that is was important to clarify that a
public agency may use data from prior assessments conducted by
individuals or agencies other than the public agency in determining
what additional data were needed.
Some commenters requested that the note be deleted.
Discussion: Whether additional data are needed as part of an
initial evaluation or reevaluation must be determined on a case-by-case
basis, depending upon the needs of the child and the information
available regarding the child, by a group that includes the individuals
described in Sec. 300.344 and other qualified professionals, as
appropriate.
It is intended that the group review all relevant existing
evaluation data on a child, including that provided by the parents and,
where appropriate, data from evaluations conducted by other agencies. A
public agency must ensure that the group fulfilling these functions
include individuals beyond those described in Sec. 300.344 if necessary
to ensure that appropriate, informed decisions are made (see
Sec. 300.533).
Requiring public agencies to obtain informed written consent
permitting them not to collect, as part of a reevaluation, additional
data to determine whether a child continues to be a child with a
disability, would exceed the requirements of the statute, as would
requiring States to report on the number of children for whom a
reevaluation does not include collecting additional data to determine
whether they continue to be children with disabilities.
The provisions of Sec. 300.533(c) apply only to the collection of
additional data needed to determine whether a child continues to be a
child with a disability.
It would not be consistent with the statute and these regulations
to require that parents ``justify'' any request for additional
assessment data. Parents must be included in the group that reviews
existing data and determines what additional data are needed, and, as
part of that group, they have the right to identify additional
assessment data that they believe are needed and to participate in the
decision regarding the need for those data. Both the statute and these
regulations require that the determination regarding the need for
[[Page 12635]]
additional data be based, in part, on input from the parents. Under
both the statute and these regulations, parents also have the right to
request an assessment, as part of a reevaluation, to determine whether
their child continues to have a disability under IDEA. However, this
right is limited to determinations of eligibility for services under
Part B. If the group reviewing the existing data does not believe
additional data are needed to determine a child's continued eligibility
under IDEA, but the parents want additional testing for reasons other
than continued eligibility under IDEA, such as admission to college,
the denial of the parent's request would be subject to due process.
An additional requirement that parents be informed of their right
to request additional assessment data is not needed, as it is already
addressed by paragraph (c)(1)(iii).
The proposed note clarified that the requirement in Sec. 300.533(a)
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 group 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 group will 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 in the group of qualified
professionals who is knowledgeable about the identification,
assessment, and education of limited English proficient students. While
the proposed note provided clarifying information on the regulatory
requirements, in keeping with the general decision to eliminate notes,
the note would be removed.
Changes: The note has been removed. Paragraph (d) has been revised
to clarify that the parent's right to request an evaluation regarding
continued eligibility concerns services under Part B.
Comment: Some commenters requested that the regulation be revised
to provide further guidance as to whether public agencies are required
to convene a meeting to review existing evaluation data on a child and
to determine what, if any, additional data are needed as part of the
evaluation. A few commenters stated their opinion that the Congress did
not intend to establish a new requirement for an additional meeting
that public agencies must convene. Others asked for clarity as to
whether a public agency could meet the requirements of Sec. 300.533(a)
by reviewing existing data and determining what additional data are
needed as part of the child's IEP meeting during the second year of the
three year evaluation cycle. A few commenters asked that the regulation
be revised to require that parents are entitled to participate in any
meeting held to review existing data.
A few other commenters requested that the regulation be revised to
provide that only those members of the IEP team needed to review
current goals and objectives must participate in the review of existing
data, and that not all members involved in the initial placement need
be involved unless there is to be a change in the placement or
identification of the child.
Discussion: Section 300.533(a) requires that a group that includes
the individuals described in Sec. 300.344 (regarding the IEP team) and
other qualified professionals, as appropriate, review the existing
evaluation data and determine what additional data are needed. Although
a public agency must ensure that the review of existing data and the
determination of any needed additional data must be made by a group,
including the parents, neither the statute nor these regulations
require that the public agency conduct a meeting for this purpose. A
State may, however, require such meetings.
Section 300.501(a)(2)(i) requires that parents have an opportunity
to participate in meetings with respect to the evaluation of their
child with a disability. Therefore, if a public agency conducts a
meeting, as defined in Sec. 300.501(b)(2), to meet its responsibilities
under Sec. 300.533, the parents must have an opportunity to participate
in the meeting.
Neither the statute nor these regulations requires that all
individuals who were involved in the initial placement of a child with
a disability be part of the group that, as part of a reevaluation of
the child reviews existing data and determines what additional data are
needed. Both the statute and the regulations require, however, that a
group that includes all of the individuals described in Sec. 300.344
for an IEP meeting, and other qualified professionals, as appropriate,
fulfill those functions.
Changes: Paragraph (a) has been revised to refer to the group that
includes the individuals described in Sec. 300.344 and other qualified
individuals. A new paragraph (b) has been added to make clear that a
meeting is not required to review existing evaluation data.
Determination of Eligibility (Sec. 300.534)
Comment: A few commenters requested that the regulation provide
further guidance regarding the standards and process public agencies
must use to ensure that lack of instruction in reading or math is not
the determinant factor in determining that a child is a child with a
disability. Other commenters requested that the regulation clarify that
proposed Sec. 300.534(b) does not mean that a child who has a
disability and requires special education and related services because
of that disability can be found ineligible simply because the child
also has been denied instruction in reading or math or because the
child has limited English proficiency.
Some commenters asked for clarification as to whether, if the group
determines under Sec. 300.533 that no further data are needed, a public
agency may, without further evaluation, meet its obligation under
proposed Sec. 300.534(c) to evaluate a child with a disability before
determining that the child is no longer a child with a disability.
A few commenters requested that the regulation be revised to
clarify the meaning of ``evaluation report.'' A few commenters
requested that the regulation be revised to require that a public
agency provide information to parents regarding the results of an
evaluation prior to conducting an IEP meeting, and other commenters
requested that the regulations specify a timeline for how quickly the
public agency must provide parents with a copy of the evaluation
report.
A few commenters asked for clarification as to whether a public
agency must conduct an evaluation of a child with a disability before
the agency may graduate the child. (This issue is addressed in the
discussion regarding Sec. 300.121.)
Discussion: The specific standards and process that public agencies
use to ensure that lack of instruction in reading or math is not the
determinant factor in determining that a child is a child with a
disability, and the content of an evaluation report, are appropriately
left by the statute to State and local discretion. However, a public
agency must ensure that a child who has a disability, as defined in
Sec. 300.7 (i.e., a child who has been evaluated in accordance with
Secs. 300.530-300.536 as
[[Page 12636]]
having one of the thirteen listed impairments, and who because of that
impairment needs special education and related services) is not
excluded from eligibility because that child also has limited English
proficiency or has had a lack of instruction in reading or math. (See
also Sec. 300.532, which has been revised to require that assessments
of children with limited English proficiency must be selected and
administered to ensure that they measure the extent to which a child
has a disability and needs special education, and do not instead
measure the child's English language skills.)
The specific content of an evaluation report is appropriately left
by the statute to State and local discretion. Both the statute and the
regulations require that, upon completing the administration of tests
and other evaluation materials, a public agency must provide a copy of
the evaluation report and the documentation of determination of
eligibility to the parent, but neither establishes a timeline for
providing these documents to the parents; rather, this timeline is
appropriately left to State and local discretion. It is, however,
important to ensure that parents and other IEP team participants have
all the information they need to participate meaningfully in IEP
meetings. Indeed, Sec. 300.562(a) requires that a public agency comply
with a parent request to inspect and review existing educational
records, including an evaluation report, without unnecessary delay and
before any meeting regarding an IEP.
A public agency must evaluate a child with a disability before
determining that the child is no longer a child with a disability, but
such a reevaluation is, like other reevaluations, subject to the
requirements of Sec. 300.533. Accordingly, if a group decision is made
under Sec. 300.533(a) that no additional data are needed to determine
whether the child continues to be a child with a disability, the public
agency must provide parents with the notice required by
Sec. 300.533(d)(1), and must provide such additional assessment(s) upon
parent request consistent with Sec. 300.533(d)(2).
Changes: Paragraph (b) is revised to clarify that children are not
eligible if they need specialized instruction because of limited
English proficiency or lack of instruction in reading or math, but do
not need specialized instruction because of a disability, as defined in
Sec. 300.7. See discussion of comments received under Sec. 300.122
regarding a change to Sec. 300.534(c).
Procedures for Determining Eligibility and Placement (Sec. 300.535)
Comment: Some commenters requested that parents be added to the
variety of sources from which the public agency will draw, under
Sec. 300.535(a)(1), in interpreting evaluation data for the purpose of
determining if a child is a child with a disability.
Discussion: The proposed change is consistent with section
614(b)(4)(A), which requires that the parent be part of the team that
determines eligibility, and other provisions of the Act that stress the
importance of information provided by the parents.
Changes: Section 300.535(a)(1) is revised to add ``parent input''
to the variety of sources from which the public agency will, under
Sec. 300.535(a)(1), draw in interpreting evaluation data for the
purpose of determining if a child is a child with a disability.
Comment: A few commenters were concerned that the note
inappropriately implied that it is not necessary to use a team of
professionals and more than one assessment procedure to plan and
implement the evaluation for a child and to determine eligibility. A
few other commenters stated that the note inappropriately states that
all sources must be used for all children whose suspected disability is
mental retardation. Other commenters requested that the note be revised
to state that for some children information from additional sources,
such as an assessment of independent living skills, might be needed.
Discussion: Section 300.532 requires that a variety of assessment
tools be used, that no single procedure be used as the sole criterion
for determining the eligibility or needs of a child with a disability,
and that the child be assessed in all areas of suspected disability.
Section 300.534 requires that a team of professionals and the parent
determine a child's eligibility.
The proposed note did not in any way diminish these requirements.
It clarified that, consistent with the statute and these final
regulations, the point of Sec. 300.535(a)(1) is to ensure that more
than one source is used in interpreting evaluation data and in making
these determinations, and that although that subsection 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. While the proposed note provided clarifying information on
the regulatory requirements, in keeping with the general decision to
eliminate notes, the note would be removed.
Changes: The note has been removed.
Reevaluation (Sec. 300.536)
Comment: Some commenters asked for clarification as to what
constitutes a reevaluation. A few of these commenters asked whether a
determination under Sec. 300.533(a) that no additional data are needed
as part of a reevaluation constitutes a reevaluation and whether parent
consent under Sec. 300.505(a)(iii) is required under such
circumstances.
A few commenters requested clarification as to whether a public
agency must provide a reevaluation each time that a parent requests a
reevaluation. A few commenters asked that a Note clarify that a public
agency must conduct a reevaluation upon parent request, whether or not
the public agency agrees that a reevaluation is needed, while others
requested clarification that a public agency may refuse a parent
request for reevaluation and afford parents the opportunity for a due
process hearing to challenge the refusal. A few other commenters asked
for clarification as to whether a public agency must conduct an
evaluation whenever requested by the parent, regardless of the
frequency of such requests.
A few commenters asked that the regulation be revised to require
that public agencies consider the need for a reevaluation of a child
with a disability at least once every three years, rather than require,
as in the NPRM, that a reevaluation be conducted at least once every
three years.
Discussion: Under both prior law and the current regulations, if a
parent requests a reevaluation, the public agency must either: (1)
provide the parents with written notice of the agency's proposal to
conduct the reevaluation; or (2) provide the parents with written
notice of the agency's refusal to conduct a reevaluation. The parent
may challenge such a proposal or refusal by requesting a due process
hearing. If the agency conducts a reevaluation and the evaluation group
concludes that under Sec. 300.533(a) no additional data are needed to
determine whether the child continues to be a child with a disability,
the public agency must provide parents with the notice required by
Sec. 300.533(c)(1), and must provide such assessment upon parent
request.
The statute specifically requires at section 614(a)(2) that ``a
reevaluation of each child with a disability is conducted ... at least
once every three years.'' However, in meeting this
[[Page 12637]]
requirement, a group will, pursuant to Sec. 300.533, review existing
data and determine what, if any, additional assessment data are needed.
Parent consent is not required for a review of existing data; however,
parent consent would be required before additional assessments are
conducted.
Changes: None.
Comment: A few commenters noted that Sec. 300.536(b) references
Sec. 300.530(b), a nonexistent subsection.
Discussion: The noted reference is a typographical error.
Changes: Section 300.536(b) has been revised to refer to
Sec. 300.530 rather than Sec. 300.530(b).
Additional Procedures for Evaluating Children With Specific Learning
Disability (Secs. 300.540--300.543)
Comment: Commenters raised a variety of issues regarding the
regulatory provisions concerning the additional procedures for
evaluating children suspected of having specific learning disabilities.
However, none of those comments raised significant concerns about the
minor changes from prior regulations proposed in the NPRM, which were
designed merely to accommodate new statutory provisions regarding the
participation of parents in evaluation determinations and evaluation
reports and documentation of eligibility determinations applicable to
all eligibility determinations, including those regarding specific
learning disabilities.
Discussion: As indicated in the preamble to the NPRM, the
Department is planning to conduct a careful, comprehensive review of
research, expert opinion and practical knowledge of evaluating and
identifying children with a specific learning disability over the next
several years to determine whether changes to the standards and process
for identifying children with a specific learning disability should be
proposed. Because that review has not been done, no further changes are
made to the regulations.
Changes: None.
General LRE Requirements (Sec. 300.550)
Comment: A number of commenters asked that the regulation be
revised to make clear that a child with a disability cannot be removed
from the regular class environment based on the type or degree of
modifications to the general curriculum that the child needs, or on the
types of related services that the child needs. Some commenters asked
that paragraph (b)(1) be revised to make clear that whatever the
setting selected, the child is educated in the general curriculum.
Others asked that paragraph (b)(2) be revised to require consideration
of positive behavioral supports in educating children with disabilities
in regular classes.
A few commenters asked that a cross-reference to the exceptions in
Sec. 300.311(b) and (c) be added for students with disabilities
convicted as adults and incarcerated in adult prisons. Several
commenters asked that a note be added to specify that ESY services must
be provided in the LRE. Another asked that a note explain that the
reference to ``special classes'' in paragraph (b)(2) refers to special
classes based on special education needs rather than special classes
that the LEA makes available to all children, whether nondisabled or
disabled, such as remedial reading, art, or music classes.
Discussion: Placement in the LRE requires an individual decision,
based on each child's IEP, and based on the strong presumption of the
IDEA that children with disabilities be educated in regular classes
with appropriate aids and supports, as reflected in paragraph (b) of
this section. The regulations always have required that placement
decisions be based on the individual needs of each child with a
disability and prohibited categorical decision-making.
In addition, the new statutory provisions regarding IEPs, reflected
in the regulations at Sec. 300.347(a)(1) and (2) specify that IEPs must
include a statement of how the child's present levels of educational
performance affect the child's involvement and progress in the general
curriculum and a statement of measurable annual goals, including
benchmarks or short-term objectives for meeting the child's disability-
related needs to enable the child to be involved in and progress in the
general curriculum. These provisions apply regardless of the setting in
which the services are provided.
Similarly, the IEP team, in developing the IEP under
Sec. 300.346(a)(2)(i), is required to consider positive behavioral
intervention, strategies and supports to address the behavior of a
child with a disability whose behavior impedes his or her learning or
that of others. These provisions are designed to foster the increased
participation of children with disabilities in regular education
environments or other less restrictive environments, not to serve as a
basis for placing children with disabilities in more restrictive
settings.
The determination of appropriate placement for a child whose
behavior is interfering with the education of others requires careful
consideration of whether the child can appropriately function in the
regular classroom if provided appropriate behavioral supports,
strategies and interventions. If the child can appropriately function
in the regular classroom with appropriate behavioral supports,
strategies or interventions, placement in a more restrictive
environment would be inconsistent with the least restrictive
environment provisions of the IDEA. If the child's behavior in the
regular classroom, even with the provision of appropriate behavioral
supports, strategies or interventions, would significantly impair the
learning of others, that placement would not meet his or her needs and
would not be appropriate for that child.
The IDEA Amendments of 1997 place renewed emphasis on teaching
children with disabilities to the general curriculum and ensuring that
these children are included in State- and district-wide assessments of
educational achievement. Because, as commenters noted, one consequence
of heightened accountability expectations may be unwarranted decisions
to remove children with disabilities from regular classrooms so as to
avoid accountability for their educational performance, the regulations
should make clear that the type or extent of the modifications that the
child needs to the general curriculum not be used to inappropriately
justify the child's removal from education in regular, age-appropriate
classrooms. Therefore, a provision should be added to Sec. 300.552 to
provide that a child not be denied education in age-appropriate regular
classrooms solely because the child's education required modification
to the general curriculum. Under this provision, for example, a child
with significant cognitive disabilities could not be removed from
education in age-appropriate regular classrooms merely because of the
modifications he or she needs to the general curriculum. This provision
should not be read to require the placement of a child with a
disability in a particular regular classroom or course if more than one
regular age-appropriate classroom or course is available in a
particular grade or subject.
A cross-reference to the exceptions in Sec. 300.311(b) and (c),
like that in Sec. 300.347(d), will make the regulations clearer and
more complete.
As the discussion of Sec. 300.309 explains in more detail, while
ESY services must be provided in the LRE, public agencies are not
required to create new programs as a means of providing ESY services to
students with disabilities in integrated settings if the public agency
does not provide summer services for its nondisabled children.
[[Page 12638]]
While the commenters are correct that the reference to ``special
classes'' in paragraph (b)(2) refers to special classes necessary to
meet special education needs, and not classes that an LEA makes
available to all children, such as remedial reading, or advanced
placement, art or music classes, paragraph (b)(1) provides that the LRE
provisions of the regulations are focused on educating children with
disabilities with nondisabled children to the maximum extent
appropriate. In that context, the reference to ``special classes'' is
to classes organized on the basis of disability and not classes that
are based on some other interest, need or ability of the students.
Changes: A cross-reference to the requirements of Sec. 300.311(b)
and (c) has been added to paragraph (a).
A new paragraph has been added to Sec. 300.552 prohibiting removal
of a child with a disability from an age-appropriate regular classroom
solely because of needed modifications in the general curriculum.
Continuum of Alternative Placements (Sec. 300.551)
Comment: A number of commenters requested that the regulation
include a statement that a child does not need to fail in each of the
less restrictive options on the continuum before they are placed in a
more restrictive continuum placement that is appropriate to their
needs. These commenters felt that this was needed to insure that
children get appropriate services in a timely manner. Some commenters
requested that the regulations specify that the placement appropriate
for children who are deaf must be in a setting where the child's unique
communication, linguistic, social, academic, emotional, and cultural
needs can be met, including opportunities for interaction with
nondisabled peers.
Discussion: The regulations do not require that a child has to fail
in the less restrictive options on the continuum before that child can
be placed in a setting that is appropriate to his or her needs. Section
300.550(b)(2) of the regulations however, does require that the
placement team consider whether the child can be educated in less
restrictive settings with the use of appropriate supplementary aids and
services and make a more restrictive placement only when they conclude
that education in the less restrictive setting with appropriate
supplementary aids and services cannot be achieved satisfactorily. New
statutory changes to the IEP development process make clear that the
IEP team considers the language and communication needs, opportunities
for direct communication 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 in developing IEPs for children who are
deaf or hard of hearing. These requirements, which are included in the
regulations at Sec. 300.346(a)(2)(iv), should address the concerns
raised by the commenters. In light of this change, further regulation
is not necessary.
Changes: None.
Comment: A number of commenters expressed concern about the note
following this section regarding home instruction. Some stated that the
note should be struck because it implied that home instruction was an
appropriate placement for all medically fragile children and that this
was contrary to the requirement that placement be determined based on
the individual needs of each child. Some asked that the regulation
limit home instruction to those medically fragile children whose
treating physicians have certified are not able to participate in a
school setting with other children.
Others disliked the note because they believed that home
instruction should be available in other instances when the IEP team
determines that such a placement is appropriate and should not be
limited by type of disability. Some commenters wanted the note to be
revised to make clear that home instruction could be available for
children with behavior problems and those in interim alternative
educational placements because they had been suspended or expelled from
school for disciplinary reasons if the IEP team determined that it was
the appropriate placement. Others asked that the note should be revised
to caution about the inappropriate use of home instruction as a
placement for children suspended and expelled, unless requested by the
parent for medical, health protection, or diagnostic evaluation
purposes. Some commenters asked that the note make clear that
discipline issues should be handled through the provision of
appropriate services in placements other than home.
Some commenters asked that the note be modified to state that home
instruction services may be appropriate for young children if the IEP/
IFSP team determines appropriate. Other commenters asked that the
regulations make clear that home instruction services are an
appropriate modification of the IEP or placement for incarcerated youth
who are being kept in segregation, close custody or mental health
units.
Discussion: Home instruction is, for school-aged children, the most
restrictive type of placement because it does not permit education to
take place with other children. For that reason, home instruction
should be relied on as the means of providing FAPE to a school-aged
child with a disability only in those limited circumstances when they
cannot be educated with other children even with the use of appropriate
related services and supplementary aids and services, such as when a
child is recovering from surgery. The implication in the note that
placement decisions could be based on the type of disability of a child
was unintended.
Instruction at home may be the most natural environment for a young
child with a disability if the child's IEP/IFSP team so determines.
`Home instruction' may be an appropriate modification of an IEP or
placement under Sec. 300.311 for incarcerated youth who are being kept
in close custody, or segregation or in a mental health unit. The issue
of home instruction for children with disabilities who have been
suspended or expelled for behavior that is not a manifestation of their
disability is addressed under Sec. 300.522.
Changes: The note has been deleted.
Placements (Sec. 300.552)
Comment: A number of commenters asked that paragraph (a)(1) be
revised to require that parents be informed about the full range of
placement options, especially for children who are deaf or hard of
hearing. Often these commenters also asked that the regulations contain
a statement that the appropriate placement of a child who is deaf or
hard of hearing is the setting in which the child's unique
communication, linguistic, academic, social, emotional and cultural
needs can be met.
One commenter asked that the regulations include standards for
numerical improvements in the percentages of children with disabilities
who are educated in regular classes and dates by which those standards
are to be met.
Discussion: The discussion concerning Sec. 300.551 notes that the
IEP provisions of the regulations already incorporate statutory
language concerning the need to consider the particular needs of
children who are deaf or hard of hearing in developing appropriate
IEPs.
Since placements are determined based on the needs of individual
children, and because the IDEA Amendments of 1997 provide that parents
of children with disabilities are members of any group that makes
[[Page 12639]]
decisions on the education placement of their child (section 614(f) of
the Act) it would seem to be unnecessary and unreasonably burdensome to
require LEAs to inform parents about the full range of placement
options.
Under Sec. 300.501(c), parents must now be included in the group
making decisions about the educational placement of their child. In
view of the principle of regulating only if necessary, the regulations
are not changed in the ways suggested by these commenters.
With respect to paragraph (a)(1) of this section, nothing in the
regulations would prohibit a public agency from allowing the group of
persons that makes the placement decision to also serve as the child's
IEP team, so long as all individuals described in Sec. 300.344 are
included. However, in the interest of limiting the use of notes in
these regulations, Note 1 would be removed.
Changes: Note 1 has been removed. See discussion of comments
received under Sec. 300.550 regarding the addition of a new
Sec. 300.552(e) prohibiting removal of a child with a disability from
an age-appropriate regular classroom solely because of needed
modifications in the general curriculum.
Comment: A number of commenters asked for revisions to the
regulation designed to foster the inclusion of children with
disabilities in the schools and classrooms they would attend if not
disabled, such as explaining that children with disabilities could be
placed at another school only with compelling educational justification
and not for reasons of administrative convenience, or requiring that
the child be educated at the school that they would attend if not
disabled unless the child's educational needs require some other
placement. Others wanted the regulation to recognize the administrative
right to make geographic assignments so that not every facility in a
school district would need to be made accessible, as provided under the
Section 504 and Americans with Disabilities Act regulations.
Discussion: LEAs are strongly encouraged to place children with
disabilities in the schools and classrooms they would attend if not
disabled. However, the regulatory provision has always provided that
each child with disabilities be educated in the school he or she would
attend if not disabled unless their IEP required some other
arrangement. (See, Sec. 300.552(c)). Physical accessibility of school
facilities is covered more fully by section 504 of the Rehabilitation
Act of 1973 (Section 504) and the Americans with Disabilities Act
(ADA).
Changes: None.
Comment: Some commenters felt that paragraph (d) of the regulation
required burdensome, unnecessary paperwork. Others requested its
deletion because they felt that too often a district is unwilling to
prevent potential harmful effects and uses this provision to make
segregated placements that are then presented as being ``in the child's
best interest.'' One commenter asked that this paragraph be revised to
emphasize how integration of children with disabilities and nondisabled
children and successful learning are now necessary conditions of one
another.
Discussion: Paragraph (d) of this section does not impose paperwork
burdens. Paragraph (d) of this section provides important protections
for children with disabilities and helps ensure that they and their
teachers have the supports to prevent any harmful effect of a placement
on the child or on the quality of services that he or she needs. If the
placement team determines that even with the provision of supplementary
aids and services, the child's IEP could not be implemented
satisfactorily in the regular educational environment, that placement
would not be the LRE placement for that child at that time.
Generally, as the commenter suggests, achievement test performance
of students in inclusive classes is the equivalent or better than
achievement test performance of others in segregated setting and self-
concept, social skills and problem solving skills improve for all
students in inclusive settings. Placement decisions, however, need to
consider the individual needs of each child.
Changes: None.
Comment: A number of commenters were concerned with placement
considerations for preschool-aged children with disabilities. Some
expressed support for the language in Note 2 regarding preschool
children with disabilities. Others thought that the language of the
note that indicated that school districts that did not operate regular
preschool programs might have to place preschool children with
disabilities in private preschool programs as a means of providing
services in the LRE should be struck as it was not required by the
statute, or would be costly to implement.
Some thought the explanation about LRE for preschool children with
disabilities should be in the regulation, as it is important that
schools understand that they may meet the requirements of paragraph (c)
for preschool children with disabilities by participating in other
preschool programs such as Head Start, operated by other agencies,
through private agencies serving preschool-aged children, and by
locating preschool programs in elementary education schools that serve
all children.
One commenter asked that the reference to `private school programs
for nondisabled children' be struck as suggestive that private schools
are not bound to comply with the ADA. Some commenters thought that the
note implied that a full continuum is not needed for preschool children
with disabilities and should be revised. Another commenter stated that
locating classes of preschool children with disabilities in regular
elementary schools is not an appropriate solution to meeting the LRE
for preschoolers and should be struck from the note.
Discussion: Language has been added to the regulation to clarify
that 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. Note 2 to this
section in the NPRM was intended to provide suggestions on how a public
agency may meet the LRE requirements if it does not generally provide
education to nondisabled preschool children. However, in light of the
general decision to remove all notes from these final regulations, the
note would be removed.
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. For those
public agencies, the note provided some alternative methods for meeting
the LRE requirements. The examples in the note of placing preschool
children with disabilities in private preschool programs and locating
classes for preschool children with disabilities in regular elementary
schools as a means of meeting the LRE requirements were not intended to
limit the placements options on the continuum which may be used to meet
the LRE needs of preschool children. The full continuum of alternative
placements at 34 CFR 300.551, including integrated placement options,
such as community-based settings with typically developing age peers,
must be available to preschool children with disabilities.
The overriding rule in this section is that placement decisions for
all children with disabilities, including preschool children, must be
made on an individual basis. The reference in the note to ``private
school programs for nondisabled children'' was not intended to suggest
that private schools are not required to comply with the ADA.
[[Page 12640]]
The second part of Note 2 to proposed Sec. 300.552 cited language
from the 1976 published analysis of comments on the regulations
implementing Section 504 of the Rehabilitation Act of 1973. The issues
raised by that analysis (appropriate placement for a child with
disabilities whose behavior in a regular classroom significantly
impairs the education of other students, and placement of a child with
disabilities as close to home as possible) are addressed elsewhere in
this attachment.
Changes: A reference to preschool children with disabilities has
been added to the introductory paragraph of Sec. 300.552. Note 2 has
been removed.
Comment: Several commenters requested adding language that would
prohibit States from using a funding mechanism to provide financial
incentives to place children with disabilities in a particular type of
placement and to specify that State funding mechanisms must be
``placement neutral'.
A number of commenters asked that the regulations explicitly
include a presumption that placement of children with disabilities is
in the regular class, and that the placement team must consider the use
of positive behavioral interventions, and supplementary aids and
services before concluding that placement in a regular class is not
appropriate for a child with a disability. Others asked that the
substance of Note 3 (explaining that if behavioral interventions are
incorporated into the IEP many otherwise disruptive children will be
able to participate in regular classrooms) be incorporated into the
regulations. Others felt that Note 3 added steps and services that
exceeded the statute.
Discussion: Section 300.130(b) incorporates into the regulations
the new statutory provision that specifies that if a State has a
funding mechanism that distributes State funds on the basis of the type
of setting in which a child is served, that mechanism may not result in
placements that violate the LRE requirements, and if the State does not
have policies and procedures to ensure compliance with that obligation,
it provides the Secretary with an assurance that it will revise the
funding mechanism as soon as feasible. Given that requirement, no
further change is necessary here.
A presumption of placement in a regular class is already embodied
in Sec. 300.550. Note 3 to this section in the proposed regulations
merely stated the reasonable conclusion that if behavioral
interventions are incorporated into the IEPs of children with
disabilities, many of these children, who without those services might
be disruptive, can be successfully educated in regular classrooms. Note
3 added no requirements or services that exceed the statute, as the
requirement to consider positive behavioral interventions, strategies,
and supports to address the behavior of children with disabilities
whose behavior impedes his or her learning or that of others, which is
contained in Sec. 300.346(a)(2)(i), is taken directly from section
614(d)(3)(B)(i) of the Act. Nevertheless, in the interest of
eliminating the use of notes in these regulations, Note 3 should be
removed, as it was merely an observation, based on the requirements of
the regulations.
Changes: Note 3 has been removed.
Nonacademic Settings (Sec. 300.553)
Comment: None.
Discussion: The note following this section in the NPRM pointed out
that this provision is related to the requirement in the regulations
for section 504 of the Rehabilitation Act of 1973, and emphasized the
importance of providing nonacademic services in as integrated a setting
as possible, especially for children whose educational needs
necessitate their being solely with other disabled children during most
of the day. Even children with disabilities in residential programs are
to be provided opportunities for participation with other children to
the maximum extent appropriate to their needs. However, in light of the
decision to remove all notes from these final regulations, the note
following this section would be removed.
Changes: The note following this section has been removed.
Children in Public or Private Institutions (Sec. 300.554)
Comment: One commenter thought that the language of this section
was ambiguous and left confusion as to whether special arrangements
with public and private institutions were required whether they were
needed or not. Another commenter proposed changes that would require
arrangements such as a memorandum of understanding with all public and
private institutions. One commenter thought that the note following
this section conflicted with other regulations concerning incarcerated
students and that those students should be excluded from the subject of
the note. Another commenter asked that the substance of the note be
incorporated into the regulation and that timelines for compliance be
included.
Discussion: This section was not intended to require memoranda of
agreement or other special procedures that are not necessary to
effectively implement Sec. 300.550. Requiring agreements to be
developed that are not necessary for meeting the other LRE requirements
would be overly prescriptive.
The requirement that disabled students be educated with nondisabled
students does apply to students with disabilities who are in
correctional facilities, to the extent that the requirement can be met
consistent with the terms of their incarceration, except to the extent
modified under the authority in Sec. 300.311. One way the LRE
requirements could be met for students with disabilities in prisons
would be to include them in the educational activities of nondisabled
prisoners and provide appropriate services in that environment. If a
State has transferred authority for the education of students with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons to another agency, the other agency, not
the SEA, would have to ensure that LRE requirements are met as to that
class of students.
The note following this section in the NPRM reflected the important
fact that, except as provided in Sec. 300.600(d) (regarding students
with disabilities in adult correctional facilities), children with
disabilities in public and private institutions are covered by the
requirements of these regulations, and that the SEA has an obligation
to ensure that each applicable agency and institution in the State
meets these requirements. Whatever the reasons for the child's
institutional placement, if he or she is capable of education in a
regular class, the child may not be denied access to education in a
regular class, consistent with Sec. 300.550(b). Timelines for
development of memoranda of agreement or other special implementation
procedures would be overly prescriptive. In light of the decision to
remove notes from these final regulations, the note would be removed.
Changes: Section 300.554 has been reworded to clarify that special
arrangements with public and private institutions are only required if
needed to ensure that Sec. 300.550 is effectively implemented. A
technical change has been made to the regulation to make clear that the
SEA's responsibility does not include students with disabilities who
are convicted as adults under State law and incarcerated in adult
prisons. The note following this section has been removed and a new
paragraph has been added to Sec. 300.300(a) to more generally
[[Page 12641]]
make the point that services and placement decisions must be based on a
child's individual needs and not category of disability.
Technical Assistance and Training Activities (Sec. 300.555)
Comment: Some commenters asked that parents and advocates be
included in the training mentioned in paragraph (b) of this section.
Another commenter asked that the regulation make clear that education
support personnel as well as teachers and administrators are fully
informed and provided technical assistance and training necessary to
help them meet their LRE responsibilities. Another commenter wanted
SEAs to provide specific training and information on LRE for children
who are deaf and hard of hearing.
Discussion: As a matter of good practice, SEAs and LEAs are
encouraged to develop opportunities for school personnel (including
related service providers, bus drivers, cafeteria workers, etc.) and
parents to learn together about all of the requirements under the Act
because these experiences will improve cooperation among school
personnel and between schools and parents and lead to improved services
for children with disabilities. However, regulation on this point is
not appropriate, as SEAs need the flexibility to respond to particular
circumstances in their jurisdictions. For the same reason, additional
specificity about the school personnel who need information and
training or the subject matter of that training is not appropriate.
Changes: None.
Monitoring Activities (Sec. 300.556)
Comment: One commenter asked that States be required to establish
criteria that would trigger monitoring reviews of LEA placement
procedures to ensure compliance with LRE requirements because of the
long history of violations of these provisions. Another asked that the
regulations specify that SEAs must initiate enforcement actions, if
appropriate.
Discussion: SEAs, under their general supervisory responsibility,
are charged with ensuring that the requirements of the Act are met.
That responsibility includes monitoring LEA performance, providing
technical assistance and information on best practices, and requiring
corrective action and instituting enforcement actions when necessary.
The provisions of this section reinforce the active role SEAs need to
play in implementing the entire Act and emphasize the importance of the
LRE requirements in meeting the goals of the Act. The role of SEAs in
implementing the requirements of the Act will be carefully reviewed by
OSEP in its monitoring of States.
Changes: None.
Access Rights (Sec. 300.562)
Comment: A number of commenters were concerned about the types of
records to which parents have access under this section. For example,
some believed that the regulations should make clear that parents would
not have access to copyrighted materials such as test protocols, or
private notes of an evaluator or teacher. Others took the opposite
view, urging that whenever raw data or notes are used to make a
determination about a student, that information should be subject to
parent access. Commenters also requested clarity on the question of the
schools' liability for allowing parents access to records under these
regulations when other laws or contractual agreements prohibit such
disclosure.
One commenter asked that the right be phrased as the right ``to
inspect and review all records relating to their children'' rather than
to ``all education records relating to their children.''
Discussion: Part B incorporates and cross-references the Family
Educational Rights and Privacy Act (FERPA). Under Part B, the term
``education records'' means the type of records covered by FERPA as
implemented by regulations in 34 CFR part 99. Under Sec. 99.3 (of the
FERPA regulations), the term ``education records'' is broadly defined
to mean those records that are related to a student and are maintained
by an educational agency or institution. (FERPA applies to all
educational agencies and institutions to which funds have been made
available under any program administered by the Secretary of
Education.)
Records that are not directly related to a student and maintained
by an agency or institution are not ``education records'' under FERPA
and parents do not have a right to inspect and review such records. For
example, a test protocol or question booklet which is separate from the
sheet on which a student records answers and which is not personally
identifiable to the student would not be a part of his or her
``education records.'' However, Part B and FERPA provide that an
educational agency or institution shall respond to reasonable requests
for explanations and interpretations of education records. (34 CFR
300.562(b)(1); 34 CFR 99.10(c)).
Accordingly, if a school were to maintain a copy of a student's
test answer sheet (an ``education record''), the parent would have a
right under Part B and FERPA to request an explanation and
interpretation of the record. The explanation and interpretation by the
school could entail showing the parent the test question booklet,
reading the questions to the parent, or providing an interpretation for
the responses in some other adequate manner that would inform the
parent.
With regard to parents having access to ``raw data or notes,''
FERPA exempts from the definition of education records under 34 CFR
99.3 those records considered to be ``sole possession records.''
FERPA's sole possession exception is strictly construed to mean
``memory-jogger'' type information. For example, a memory-jogger is
information that a school official may use as a reference tool and,
thus, is generally maintained by the school official unbeknownst to
other individuals.
With respect to the issue of liability for disclosing information
to parents when other laws or contractual obligations would prohibit
it, public agencies are required to comply with the provisions of IDEA
and FERPA, and must ensure that State law and other contractual
obligations do not interfere with compliance with IDEA and FERPA.
Federal copyright law protects against the distribution of copies of a
copyrighted document, such as a test protocol. Since IDEA and FERPA
generally do not require the distribution of copies of an education
record, but rather parental access to inspect and review, Federal
copyright law generally should not be implicated under these
regulations.
There is nothing in the legislative history of section 615(b)(1) of
the Act to suggest that it expanded the scope of information available
to parent examination beyond those records that they would have access
to under FERPA.
Changes: None.
Comment: There were a variety of comments regarding the timeline in
paragraph (a) for agency compliance with a parent request to inspect
and review records. Some commenters thought it should be ``45 school
days'' rather than 45 calendar days. Others felt that 45 days was too
long, and that access should be provided usually within 10 days and no
longer than 30 days after the request. Others wanted a one business day
timeline if the agency has initiated an expedited due process hearing.
Another commenter asked that agencies have to respond to a request to
inspect and review before any meeting that parents now have the right
to attend, not just before IEP meetings and
[[Page 12642]]
due process hearings. Other commenters wanted access to be required at
least five days before an IEP meeting and wanted it made clear that if
State or local law provided for shorter timelines, that those timelines
must be met.
Discussion: The 45 day timeline is taken from FERPA, to which these
regulations are tied by statute. FERPA requires that each educational
agency or institution establish appropriate procedures for the granting
of a request by parents for access to the educational records of their
children within a reasonable period of time but in no case more than 45
days after the request has been made. In order not to confuse and
increase administrative burden, these regulations are intended to be
consistent with FERPA where possible. In practice, schools often
provide access within a period of time that is considerably shorter
than the 45-day time limit, which is the maximum time allowed for
compliance.
The commenters are correct that the new expedited due process
hearing procedures will require prompt access by parents when
requested, but the regulations already adequately addresses the
obligation of the participating agencies to provide access before a
hearing and so no more specific timeline is added to the regulations.
However, the regulations should be changed to acknowledge the new
expedited due process hearing procedures in Secs. 300.521-300.528
concerning discipline. Changes are not made with respect to other
meetings, in light of the confusion and increased administrative burden
inherent in such a change. Public agencies, however, are encouraged to
provide parents access, when requested, in advance of these meetings to
the greatest extent possible.
Changes: Paragraph (a) of this section has been amended to
acknowledge that access rights also apply to the new expedited due
process hearing procedures under Secs. 300.521-300.528.
Comment: Other commenters asked that parents receive at no cost
copies of their child's records prior to meetings or hearings, rather
than just have the right to inspect and review those records. Another
commenter asked that the regulations specify that parents or their
legal representatives have the right to copy any record they feel they
need for an agency-specified reasonable charge per page. Another
commenter stated that parents or their legal representatives should
also have access to any manuals used in preparing or evaluating any
student records.
Discussion: As explained previously, these regulations should be
consistent with those implementing FERPA to the greatest extent
possible to prevent confusion and limit administrative burden on
participating agencies. Therefore, it would not be appropriate to give
parents additional rights to copies of their child's records. FERPA
generally provides for a right to inspect and review records (34 CFR
Sec. 99.10) and permits agencies to charge fees for copies of education
records provided to parents. (34 CFR 99.11).
These rules would apply to education records of a student that
concern services required under the IDEA as well as all other education
records. Paragraph (b)(2) of Sec. 300.562 provides that a participating
agency is required to provide copies of education records to a parent
if failure to do so would effectively prevent the parent from
inspecting and reviewing the records. (See, also 34 CFR 99.10(d)(1)).
One such instance would be if the parent lives outside commuting
distance of the participating agency. The Secretary has decided that it
would impose unnecessary burden to require participating agencies to
provide copies except as described previously. However, participating
agencies are free to adopt policies of providing copies in other cases,
if they choose to do so.
Access should not be required to documents that are not covered by
the definition of education records, such as teacher or evaluator
manuals. The requirements of paragraph (b)(1) of this section and 34
CFR 99.10(c) which provide that parents may request an explanation and
interpretation of their children's education records will permit
parents sufficient information about the contents of their children's
education records.
Changes: None.
Fees (Sec. 300.566)
Comment: Several commenters requested that this section make clear
that fees that can be charged may not include the cost of the labor
involved in copying the records. Others asked that participating
agencies not be permitted to charge parents more than the actual costs
they incur in copying the records, or charge more than the prevailing
rate in the community. Commenters also asked that agencies not be
permitted to require parents to provide private financial information
before providing copies of records at no cost. Some commenters asked
whether LEAs could use Part B funds to cover the costs of providing
parents copies so that fees would not have to be charged.
Discussion: Under these regulations and those implementing FERPA,
participating agencies are entitled to charge reasonable fees for the
actual cost of reproduction and postage. Under FERPA, a school may
charge a fee for a copy of an education record which is made for the
parent, unless the imposition of a fee effectively prevents the parent
from exercising the right to inspect and review the student's education
records. A school may not charge a fee to search for or to retrieve the
education records. (34 CFR 99.11). Agencies may of course adopt
policies of making copies available free of charge and are encouraged
to do so. Agencies may use Part B funds to cover the costs that
otherwise would be charged to parents.
Changes: None.
Consent (Sec. 300.571)
Comment: One commenter noted an apparent contradiction between this
section, which requires parental consent before records are disclosed,
and proposed Sec. 300.529(b), which requires that LEAs transmit copies
of special education and disciplinary records of a child to appropriate
authorities when reporting a crime to those authorities.
Discussion: As explained in the discussion of Secs. 300.529 and
300.529(b) permit the transmission of copies of education records only
to the extent that disclosure without parental consent is permitted by
FERPA. Because the prior Sec. 300.571 would have prohibited disclosures
without parent consent to agencies, such as law enforcement or juvenile
justice agencies, that are not ``participating agencies'' under
Secs. 300.560-300.577 even though disclosure without parent consent to
these entities in certain circumstances would have been permitted under
FERPA, a change should be made to this section so that these
regulations permit disclosures to the extent they are permitted under
FERPA.
Changes: Paragraph (a) has been amended to permit disclosures
without parental consent to the agencies identified in Sec. 300.529, to
the extent permitted under FERPA.
Destruction of Information (Sec. 300.573)
Comment: One commenter suggested that destruction of student
records could act to deny students future benefits such as private
insurance coverage and assistance in college.
Discussion: The regulations provides that parents must be informed
when personally-identifiable information is no longer needed to provide
educational services to the child. This notice would normally be given
after a child graduates or otherwise leaves the agency. As the note
following this section in the NPRM pointed out, personally-identifiable
information on a
[[Page 12643]]
child may be retained permanently unless a parent requests that it be
destroyed.
The purpose of the destruction option is to allow parents to decide
that records about a child's performance, abilities, and behavior,
which may possibly be stigmatizing and are highly personal, are not
maintained after they are no longer needed for educational purposes. On
the one hand, parents may want to request destruction of records as it
is the best protection against improper and unauthorized disclosure of
what may be sensitive personal information. However, individuals with
disabilities may find that they need information in their education
records for other purposes, such as public and private insurance
coverage.
In informing parents about their rights under this section, it
would be helpful if the agency reminds them that the records may be
needed by the child or the parents for social security benefits or
other purposes. Even if the parents request that the information be
destroyed, the agency may retain the information described in paragraph
(b) of this section.
In instances in which an agency intends to destroy personally-
identifiable information that is no longer needed to provide
educational services to the child (such as after the child has
graduated from, or otherwise leaves the agency's program), and informs
parents of that determination, the parents may want to exercise their
right to access to those records and request copies of the records they
will need to acquire post-school benefits in the future. In the
interest of limiting the use of notes in these regulations, the note
following this section would be removed.
Changes: The note following this section has been removed.
Children's Rights (Sec. 300.574)
Comment: Several commenters asked that the substance of the notes
following this section in the NPRM be incorporated in the regulations.
Discussion: Because of the importance of clarifying the
relationship of parent and child rights under IDEA and FERPA, including
the new provisions of the IDEA concerning transfer of rights at the age
of majority, and the general decision to eliminate all notes in these
regulations, the substance of the notes following this section in the
NPRM would be incorporated into the regulations.
Changes: The substance of Notes 1 and 2 have been incorporated into
the regulations.
Disciplinary Information (Sec. 300.576)
Comment: One commenter requested that the term ``disciplinary
action'' be defined. A commenter asked that the regulations make clear
that action taken in response to conduct that was a manifestation of
the child's disability is not ``disciplinary action'' under this
section. Another asked that the results of a manifestation review be
included in the student records to protect the child as well as the
educational agencies.
One commenter asked that this section be revised to clarify that
before applying a policy and practice of transmitting disciplinary
information in the student records of disabled children, an LEA must
first have such a policy and practice for the student records of
nondisabled students, and that transmissions of student records that
include disciplinary information to a student's new school under
paragraph (c) can only occur to the extent such information is
transferred for nondisabled students.
Discussion: It is important that the regulations allow school
districts to understand what information may be transmitted under this
section. Under Section 504, schools may not take a disciplinary action
that constitutes a change of placement for behavior that was a
manifestation of a child's disability. Making this point in the context
of these regulations will assist schools in understanding what
information may not be considered a statement about a disciplinary
action and protect the interests of children with disabilities in not
being identified as disciplinary problems because of behavior that is a
manifestation of their disability. Further regulations are not
necessary about what information may be transmitted to another school
to which the child transfers.
Further regulation is not needed to make clear that the LEA's
policy on transmitting disciplinary information must apply to both
nondisabled and disabled students, as that provision is already
contained in paragraph (a) of this section as to an LEA's policy. An
LEA that had a policy that applied equally to nondisabled and disabled
students but applied that policy only to transfers of records of
disabled students would be in violation of Section 504, as well as Part
B.
Changes: None.
Department Procedures (Secs. 300.580-300.589)
Comment: One commenter objected that the procedures in proposed
Secs. 300.580-300.589 are overly detailed and bureaucratic. This
commenter also stated that these procedures incorporate language from
the old regulations concerning disapproval of State plans, which is no
longer relevant in light of changes in the statute. Another commenter
noted that proposed Sec. 300.583 mentioned disapproval of State plans
and requested that it be revised to refer to denial of eligibility.
Discussion: The Department does not agree that the procedures in
Secs. 300.580-300.589 are overly detailed. When the Secretary proposes
to deny a State's eligibility, withhold funds or take other enforcement
action and when a State has requested a waiver of supplement not
supplant or maintenance of effort requirements, it is important to all
parties that the process through which those issues will be decided is
clearly described, so that time, money and effort are not spent
resolving procedural questions instead of the underlying issues. The
commenter is correct that proposed Secs. 300.580-300.586 are
substantially the same as old regulations that addressed disapproval of
a State plan, and that State plans are no longer required by the
statute. When necessary, however, these same procedures were designated
in the past by the Secretary as the procedures to follow on a proposed
denial of State eligibility, a concept that remains in the law.
Changes: A technical change has been made to Sec. 300.583(a)(1) to
refer to denial of State eligibility rather than State plan
disapproval.
Enforcement (Sec. 300.587)
Comment: Some commenters stated that the regulations should contain
a trigger when the Department must initiate enforcement action for
systematic noncompliance with the Act. These commenters wanted a
similar trigger provision added to Sec. 300.197 regarding SEA
enforcement against noncompliant LEAs. One commenter asked that
paragraph (c) be revised to specify that fund withholding first be
limited to funding for administrative personnel of the noncompliant SEA
or LEA, so as to prevent denial or interruption in services to children
with disabilities. Another commenter requested that the enforcement
mechanisms mentioned in the note be incorporated into the regulation.
Several commenters objected to language in paragraph (e) which
indicated that the Secretary would have a variety of enforcement
actions available if a State were not providing FAPE to children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The commenters expressed the belief that
the statute and its legislative history
[[Page 12644]]
make clear that the only enforcement action for failure to provide
services to individuals convicted as adults under State law and
incarcerated in adult prisons when the State has assigned
responsibility for ensuring compliance with the IDEA to an agency other
than the SEA under section 612(a)(11)(C) of the Act would be to
withhold that agency's pro-rata share of the Part B grant.
Discussion: It would not be advisable to limit, through regulation,
the discretion afforded the Secretary by the statute regarding
appropriate enforcement mechanisms and when they should be employed.
Given the very wide variety in potential situations in which compliance
issues arise, and the significant differences in the scope and nature
of the issues presented in compliance situations, the Secretary needs
the discretion to exercise reasoned judgment about how best to achieve
compliance and the tools to be used to do so.
Under the statute, the Secretary, upon a finding of a State's
noncompliance with the provisions of Part B or of an LEA's or State
agency's noncompliance with any condition of their eligibility, shall
withhold further payments, in whole or in part, or refer the matter for
appropriate enforcement action, which may include referral to the
Department of Justice. This statutory language provides clear authority
for including in the regulations the three enforcement options of
withholding, referral to the Department of Justice, and other
enforcement actions authorized by law. The other enforcement actions
authorized by law include those set out in the General Education
Provisions Act (GEPA), which are generally applicable to recipients of
funds from the Department and are consistent with the goal of ensuring
compliance with the requirements of this program.
The enforcement mechanisms mentioned in the note to this section
are authorized by GEPA. The purpose of the note is merely to inform the
readers that these are some of the additional enforcement procedures
that the Secretary could choose to apply to a given instance of
noncompliance. In the interest of limiting the use of notes in the
regulations, the note would be deleted.
In cases where the State has transferred to a public agency other
than the SEA the responsibility for ensuring compliance with the Act as
to children with disabilities who are convicted as adults under State
law and are incarcerated in adult prisons, and the Secretary finds
substantial noncompliance by that other public agency, the statutory
language limits withholding a proportionate share of the State's total
grant under section 611 of the Act. However, the statute does not
impose restrictions on the Department's use of other enforcement
mechanisms. The legislative history on this issue shows two primary
concerns, one is the reasonable limitation of services to this
population in order to allow States to balance bona fide security and
compelling penological concerns against the special education needs of
the individual, and the other is that a State not be threatened with a
withholding of their entire grant amount for a failure to serve this
population.
The regulations address these concerns by interpreting the
statutory provisions in a way that limits withholding of funds as
Congress intended, but allows the Secretary, should he or she believe
that limited withholding of funds is not the appropriate means to
ensure compliance, the additional enforcement options authorized by
law.
Changes: The note following this section has been deleted.
Waiver of Requirement Regarding supplementing and not Supplanting With
Part B Funds (Sec. 300.589)
Comment: One commenter said that because State requests for waivers
of provisions of the Act are major policy proposals, the public
participation requirements of Secs. 300.280-300.284 should apply to the
State's waiver request proposal. The commenter also asked that
Sec. 300.589 be revised to permit public comment to be considered on
any impact the waiver request will have on the State's ability to
successfully implement the Act, not just the FAPE provisions of the
Act.
Discussion: The procedures proposed by the Secretary provide for
public comment on the question of whether a waiver should be granted by
the Secretary after the State has first made a prima facie showing that
FAPE is and will continue to be available if the waiver is granted.
(See Sec. 300.589(d)). This process is adequate to ensure that the
views of the public are considered in deciding waiver requests and
Secs. 300.280-300.284 should not be applied to the State's waiver
request proposal.
Sections 612(a)(18)(C) and 612(a)(19)(C)(ii) of the Act give the
Secretary the authority to grant a waiver in whole or in part if the
State provides ``clear and convincing evidence that all children with
disabilities have available to them a free appropriate public
education.'' Under Sec. 300.589(d), when the Secretary conducts a
public hearing on a State's waiver request, interested parties are
afforded the opportunity to present evidence on whether FAPE is
currently available to all children with disabilities and whether the
State will be able to ensure that FAPE remains available to all
eligible children with disabilities if the Secretary provides a waiver.
This would include a wide variety of topics, such as the State's
ability to ensure an adequate supply of qualified personnel to provide
FAPE, or to maintain an effective and efficient due process hearing
system. Even if a waiver is granted, the State will still be required
to comply with all the other requirements of Part B.
Changes: A technical change has been made to conform to the
statutory provision that the Secretary provides a waiver in whole or in
part.
Subpart F
Responsibility for all Educational Programs (Sec. 300.600)
Comment: Several commenters requested that this section be revised
to emphasize the SEA's obligation to monitor implementation of the Act.
One commenter requested that States be required to verify that all
corrective actions have been taken within a certain period of time.
Another commenter asked that paragraph (d) be revised to specify that
the SEA retains supervisory authority over any public agency to which
the Governor or his or her designee has assigned responsibility for
children with disabilities who are convicted as adults under State law
and incarcerated in adult prisons.
Discussion: A strong SEA monitoring process to ensure effective
implementation of the Act is crucial to improving educational results
for children with disabilities. A basic component of eligibility has
long been that the SEA exercises general supervisory responsibility
over all educational programs for children with disabilities in the
State, including ensuring that those programs meet the requirements of
Part B. This responsibility includes not just monitoring, and
enforcement when noncompliance is not corrected, but also effective
technical assistance that focuses on best practice designed to improve
the substantive content and results of special education. We know, from
long experience in administering this Act, that if SEA monitoring is
lax, noncompliant practices emerge at the local level and indicators of
performance for children with disabilities decline.
A priority of the Department's monitoring will be the State's
[[Page 12645]]
compliance regarding the State's supervisory role in the implementation
of Part B. However, further regulation is not necessary. There is a
great variety of circumstances that may give rise to compliance
problems, and States should have some flexibility in fashioning
remedies and timelines for correction. Verifying that corrective action
has been completed has always been an integral part of the State's
supervisory role.
The statute permits the Governor or appropriate State designee to
assign to another agency supervisory responsibility for children with
disabilities who are convicted as adults under State law and
incarcerated in adult prisons. The statute does not contemplate that
the SEA would retain supervisory authority over the education of
children with disabilities who are convicted as adults under State law
and incarcerated in adult prisons if the Governor or designee has
assigned that responsibility to another agency.
Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.
Amount Required for Subgrants to LEAs (Sec. 300.623)
Comment: None.
Discussion: The amount that will be required to be distributed as
subgrants to LEAs for capacity-building and improvement activities as
specified in Sec. 300.622 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
amount that must be flow-through to LEAs consistent with the formula in
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 capacity-building and improvement 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.
Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.
State Discretion in Awarding Subgrants (Sec. 300.624)
Comment: None.
Discussion: This section specifies that States may establish
priorities for subgrants under Sec. 300.622 to LEAs and may award those
subgrants competitively or on a targeted basis. This is because the
purpose of subgrants under Sec. 300.622, as distinguished from the
formula subgrants to LEAs under Sec. 300.712, 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 direct these funds to promote innovation, capacity
building, and systemic changes that are needed to improve educational
results.
Changes: Consistent with the decision to not include notes in these
regulations, the note following this section has been removed.
Establishment of Advisory Panels (Sec. 300.650)
Comment: One commenter wanted the regulation revised to specify
that the panel must be independent and operate under the direction of
officers elected by members of the panel.
Discussion: Additional specificity is not needed. Within the limits
of the minimum requirements of the regulations, the operation of these
panels should be left to the States.
The concept from the note, that the State advisory panel would
advise on the education of children with disabilities who have been
convicted as adults and incarcerated in adult prisons, even if a State
has assigned general supervision responsibility for those students to
an agency other than the SEA should be incorporated into Sec. 300.652,
which addresses the functions of the State advisory panel. This is
consistent with the purpose of the advisory panel under section
612(a)(21)(A) of the Act--to provide policy guidance with respect to
special education and related services for children with disabilities
in the State.
Changes: The second sentence of the note has been integrated into
Sec. 300.652. The note has been removed.
Membership (Sec. 300.651)
Comment: The Department received a variety of comments concerning
the membership of the State advisory panels. Many commenters wanted
representatives of specific additional groups, such as a representative
of a Parent Training and Information Center in the State, added to the
list of mandatory membership. Several commenters wanted paragraph (b)
to be modified to permit parents of adults who had been children with
disabilities, or persons who had relatively recent experience (e.g.,
within the last three years) as a parent of a child receiving services
under the Act, to be counted as a part of the mandatory majority.
Some commenters wanted a provision added to paragraph (b) to
prohibit individuals with a past or present affiliation, such as
employment, with an agency receiving funding under the Act from being
considered a part of the individuals with disabilities, or parents of
children with disabilities, majority. Others asked that the regulations
encourage States to seek the participation of nonacademic professionals
on the panels or to recruit parent representatives through nominations
from parent and advocacy groups.
Discussion: An advisory panel will be most effective if it fairly
represents the various interests of the groups concerned with the
education of children with disabilities and is perceived as such by the
community at large. In selecting members for the State advisory panel,
States are encouraged to solicit individuals to serve as members who do
not have, and will not be perceived as having, a conflict of interest
in representing the views of the group they were selected to represent.
That said, additional regulation is not necessary or appropriate. The
requirements of Sec. 300.651 are statutory. States should have the
discretion to appoint members to these panels, within these statutory
requirements, in a manner that best meets their needs. There is nothing
in the Act that prohibits an individual with a disability, or the
parent of a child with a disability, from employment with the SEA or an
LEA, and there will be many instances when the perspective that an
individual with a disability or the parent of a child with a disability
may bring to decisions as an employee of a public education agency will
greatly improve education for children with disabilities in that
jurisdiction. The term ``children with disabilities'' is a defined term
under the Act and in the context of Part B, refers to those children
with disabilities from birth through age 21 who are eligible for
services under Part B.
Changes: None.
Advisory Panel Functions (Sec. 300.652)
Comment: Several commenters sought expansion of the duties of the
advisory panel to encompass various operational tasks, such as
overseeing the development and implementation of a reliable and timely
data system on due process hearings.
Discussion: Section 612(a)(21)(A) of the Act specifies that the
purpose of the State advisory panels is to provide policy guidance with
respect to special education and related services for children with
disabilities in the State. The functions of the advisory panel
specified in Sec. 300.652 are drawn from
[[Page 12646]]
the statutory charge of the advisory panels. The regulations do not
mandate operational duties for an advisory panel. However, if the SEA
wants to assign other responsibilities to the advisory panel, it may do
so, as long as those other duties do not prevent it from carrying out
its responsibilities under IDEA.
Changes: No change has been made in response to these comments. See
discussion of comments received under Sec. 300.650, regarding a change
to Sec. 300.652.
Advisory Panel Procedures (Sec. 300.653)
Comment: Some commenters asked that paragraph (d) be revised to
require that public notice of advisory panel meetings and agendas be
made far enough in advance so that interested parties, such as parents
and others, may plan to attend. At least one commenter requested that
the term ``reasonable and necessary expenses'' in paragraph (f) be
revised to indicate that child care expenses are reimbursable.
Discussion: Since the purpose of announcing meetings and agendas
for those meetings is to allow the interested public to attend, the
meetings and agendas of the meetings of the advisory panels should be
announced early enough so that interested parties can plan to attend
those meetings, but an absolute time line is not necessary. A similar
standard is used in these regulations at Sec. 300.281(c)(2) regarding
notice of public hearings about State policies and procedures related
to the Part B program. Furthermore, States should have the discretion
to decide what are reasonable and necessary expenses related to
participation in meetings and performing other duties of the advisory
panel. These may include child care expenses or personal assistant
services.
Changes: Paragraph (d) is revised to require that advisory panel
meetings and agenda items are announced enough in advance to afford
interested parties a reasonable opportunity to attend and that the
meetings be open to the public.
Adoption of State Complaint Procedures (Sec. 300.660)
Comment: Several commenters requested that the note following this
section be deleted, while others thought it was important to make the
point that compensatory services can be awarded by an SEA.
Discussion: The note merely reflected what has always been the
case--that SEAs have the authority to order compensatory services in
appropriate circumstances as a remedy for violations of Part B in
resolving complaints under the procedures in Secs. 300.660-300.662.
However, in light of the decision to remove all notes from these
regulations, and to emphasize the importance of SEA action to resolve
complaints in a way that provides individual relief when appropriate
and addresses systemically the provision of appropriate services, a
provision would be added to this section to clarify that if it has
found a failure to provide appropriate services to a child with a
disability through a complaint, the resolution addresses both how to
remediate the denial of services, which can include an award of
compensatory services, monetary reimbursement, or other corrective
action appropriate to the needs of the child, and how to provide
appropriate services for children with disabilities.
Changes: A new paragraph (b) has been added on how an SEA remedies
a denial of appropriate services. The prior paragraph (b) has been
integrated into paragraph (a) and the reference to parent training and
information centers is corrected. The note has been deleted.
Minimum State Complaint Procedures (Sec. 300.661)
Comment: A number of commenters requested that the possibility of
Secretarial review be reinstated in the final regulations while others
supported the change. Some State commenters objected to having to
resolve complaints on matters on which parents could have elected to
file a due process hearing request.
Discussion: The possibility of Secretarial review has not been an
efficient use of the Department's resources, which can be better
directed to improving State system-wide implementation of the Act for
the benefit of students with disabilities. Because of the unsuitability
of the Department evaluating factual disputes in individual cases, most
requests for Secretarial review are denied. The existence of the
Secretarial review process may falsely encourage parents to delay
taking an issue to mediation or due process so that their case is not
timely filed. The Department has other more efficient mechanisms such
as on-site monitoring reviews, policy reviews and complaint referrals,
to ensure correction of violations that are brought to its attention.
In addition, the Department intends to carefully assess States' efforts
to improve their complaint resolution processes where the need is
identified.
State responsibility for ensuring compliance with the Act includes
resolving complaints even if they raise issues that could have been the
subject of a due process hearing request. A State's general supervisory
responsibility is not satisfied by relying on private enforcement
efforts through due process actions for all issues that could be the
subject of a due process hearing. In addition, the State complaint
process and mediation provide parents and school districts with
mechanisms that allow them to resolve differences without resort to
more costly and litigious resolution through due process.
In the interests of building cooperative, collaborative
relationships with all parties involved in the education of children
with disabilities, States are encouraged to offer mediation, as
appropriate, when a State complaint has been filed, as well as when a
due process hearing has been requested. The existence of ongoing
mediation in and of itself should not be viewed as an exceptional
circumstance under Sec. 300.661(b); however, if the parties agree that
the complaint resolution timeline should be extended because of the
mediation the SEA may extent the timeline for resolution of the
complaint.
In light of the general decision to remove all notes from these
regulations, the notes following this section would be removed. Because
these notes provided an important explanation of how the State
complaint process interacts with the due process hearing process, they
would be incorporated into the regulation. This will reduce unnecessary
disputes between SEAs and complainants in cases in which a complaint
raises an issue that also is raised in a due process hearing.
Changes: Paragraphs (b) and (c) have been combined into a new
paragraph (b). A new paragraph (c) has been added to clarify that if an
issue in a complaint is the subject of a due process hearing, that
issue (but not those outside of the due process proceeding) would be
set aside until the conclusion of the due process hearing; that the
decision of an issue in a due process hearing would be binding in a
State complaint resolution; and that a public agency's failure to
implement a due process decision would have to be resolved by an SEA.
The notes following this section have been deleted.
Filing a Complaint (Sec. 300.662)
Comment: Commenters generally supported the concept, reflected in
paragraph (c) of this section, that there should be a reasonable time
limit on issues subject to the complaint process. One commenter wanted
a delayed effective date for this limitation until the individual
notice of these complaint
[[Page 12647]]
procedures had been in effect for a year. Another wanted States to be
able to waive that limitation for compelling reasons. Another commenter
wanted States to have more flexibility to disregard complaints that are
weak or insubstantial, are a continuation of a pattern of complaints
that have repeatedly been found factually or legally unfounded, or that
are about the same issue as addressed in a recently closed complaint or
compliance review. Another commenter objected to the note, stating that
a State should not have to deal with complaints filed by persons
outside the State.
Discussion: The time limits in Sec. 300.662(c) were added in
recognition that at some point the issues in a complaint become so
stale that they are not reasonably susceptible to subsequent
resolution. However, such a time limit should include an exception for
continuing violations. States are free to accept and resolve complaints
regarding alleged violations that occurred outside those timelines,
just as they are free to add additional protections in other areas that
are not inconsistent with the requirements of the Act and its
implementing regulations.
States must evaluate and resolve each complaint on its own merits.
It is reasonable for a State to resolve a complaint on an issue that is
the same as an issue in an earlier resolved complaint by reference to
that earlier complaint resolution if it has first concluded, through
review and evaluation, that the facts and circumstances pertinent to
the complaints are unchanged. If a State were to refuse to accept a
complaint because it appeared to be similar to an issue in an earlier-
resolved complaint without reviewing whether the facts and
circumstances pertinent to the complaints remain the same, the State
could be ignoring potential violations of the Act.
With regard to the statement in the note that States must resolve
complaints which allege violations of the Act within their respective
State even if received from an individual or organization outside of
the State, States are responsible for ensuring compliance with Part B.
A complaint about implementation of the Act filed by someone
outside of the State may be as effective in bringing compliance issues
to the State's attention as complaints from State residents. In light
of the general decision to remove all notes from these regulations, and
to make clear the point that complaints from organizations or
individuals from out of State must also be resolved, that concept would
be integrated into Sec. 300.660(a).
Changes: Section Sec. 300.660(a) has been revised to clarify that
any complaint includes complaints filed by organizations or individuals
from another State. The note following this section has been deleted.
Subpart G--Allocation of Funds; Reports
Allocations to States (Sec. 300.703)
Comment: None.
Discussion: A reference to allocating funds to the freely
associated States was omitted from paragraph (a).
Paragraph (a) incorrectly refers to the method of distribution in
Secs. 300.704-300.705. These sections are reserved.
Changes: A reference to freely associated States has been added and
the references to Secs. 300.704-300.705 have been deleted.
Permanent Formula (Sec. 300.706)
Comment: None.
Discussion: Paragraph (b)(2) refers to the amount received by a
State under ``this section'' in the base year. Funds would not be
provided under this section of the regulations in the base year. They
would be provided under section 611 of the Act, as indicated in
Sec. 300.703(b).
Changes: The reference has been corrected to cite section 611 of
the Act.
Increases in Funds (Sec. 300.707)
Comment: None.
Discussion: Section 300.707 indicates how allocations are to be
made 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. The
reference to ``this section'' should be to section 611 of the Act.
Changes: The reference has been revised by replacing the words
``this section'' the first time they appear with ``under section 611 of
the Act''.
Limitation (Sec. 300.708)
Comment: None.
Discussion: The language in Sec. 300.708 describing conditions that
are ``Notwithstanding Sec. 300.707'' are actually consistent with
Sec. 300.707 since Sec. 300.708 is mentioned in Sec. 300.707 as
establishing conditions.
Changes: The reference has been clarified by rewording the first
sentence of Sec. 300.707.
Allocations to LEAs (Sec. 300.712)
Comment: Commenters were concerned about the distribution of funds
when the permanent formula takes effect. In particular, with regard to
the base payments provision in Sec. 300.712(b), commenters expressed
concern that it could result in a reduction of funds for LEAs in the
case of an SEA that distributes more than 75 percent of its allocation
to LEAs, and the LEA has a high child count. Because of the apparent
absence of a ``hold harmless'' provision, commenters recommended
clarification that this provision does not require an SEA to reduce its
allocation to an LEA. Other commenters asked whether proposed
Sec. 300.712(b)(2)(i) means that States should be allocating extra
funds to LEAs based on the total number of students, both regular and
special education students, or whether States should allocate based on
numbers of special education students only. These commenters requested
that the phrase ``relative numbers'' be clarified.
With respect to the note following this section of the NPRM, a
concern of one commenter was that proposed Sec. 300.712(b)(2) could be
construed as limiting States' ability to direct how their LEAs expend
Part B funds that have been reallocated to LEAs that had not adequately
provided FAPE to children with disabilities, and recommended
clarification that a State may direct how any allocation to an LEA is
to be spent.
A commenter recommended that, in calculating the distribution of
the 15 percent allocation under the permanent formula, consideration be
given for LEAs with a high incidence of children who live in
institutional and other congregate care facilities, who have special
needs and attend public schools.
Discussion: Section 611(g)(2)(B)(i) of the Act requires that when
the permanent formula becomes effective, LEAs be allocated base
payments based on 75 percent of the amounts that each State received in
the year prior to that in which the permanent formula became effective.
Funds that States are required to allocate to LEAs above this level
must be allocated based on children enrolled in elementary and
secondary schools and children in poverty. This will result in some
redistribution of funds among LEAs that have received funds above the
75 percent level on a basis of counts of children with disabilities.
However, because these provisions are based on the Act, they cannot be
changed through regulations. States may address this redistribution of
resources through funds that they set aside for State level activities.
The IDEA Amendments of 1997 maintain, in section 611(f) of the Act,
as reflected in Sec. 300.370(a), the flexibility of States to provide
additional support
[[Page 12648]]
to LEAs using these funds. However, it is appropriate to amend
Sec. 300.370 to clarify that SEAs may use these funds directly, or
distribute them on a competitive, targeted, or formula basis to LEAs.
Section 300.712(b)(2)(i) is based on section 611(g)(2)(B)(ii)(I) of
the Act, which requires that required flow through funds to LEAs be
distributed based on the relative numbers of ``children enrolled'' in
public and private elementary and secondary schools. Children enrolled
include both regular and special education students.
The term ``relative numbers'', which is used in section
611(g)(2)(B)(ii) of the Act and in proposed Sec. 300.712(b)(2),
adequately conveys the meaning that the allocations of the 85 percent
and the 15 percent will be the same proportion of the total available
as the respective numbers of children in the LEA to the State totals.
Section 300.712(b)(3) deals with the allocation of funds, not the
use of funds.
Section 611(g)(2)(B)(ii) of the Act, as reflected in proposed
Sec. 300.712(b)(2), requires that 15 percent of the funds remaining
after base payments be distributed based on the relative numbers of
children living in poverty as determined by the SEA in each LEA. The
incidence of children living in institutional or other congregate care
facilities is not a factor in this distribution, and cannot be added.
However, SEAs may use funds available for State level activities to
provide additional support for children in institutional or other
congregate care facilities.
Changes: Section 300.370 has been amended to add a new paragraph
(c) to clarify that an SEA may directly use funds that it retains but
does not use for administration, or may distribute them to LEAs on a
competitive, targeted, or formula basis.
Comment: None.
Discussion: Although no comments were received for this Part
regarding base payments for new LEAs, a number of commenters on the
Preschool Grants for Children with Disabilities program regulations (34
CFR Part 301) raised the issue of whether charter schools or LEAs not
in existence during fiscal year 1997 would be eligible for a base
payment under Sec. 301.31(a) of the regulations for the Preschool
Grants for Children with Disabilities program, and, if so, how such
payments should be calculated.
A similar issue exists with regard to base payments under the
Assistance to States for the Education of Children with Disabilities
program after the appropriation under section 611(j) of the Act exceeds
$4,924,672,200. The regulations should be revised to ensure that
charter schools established under State law as LEAs and LEAs not in
existence in the year prior to the year in which the appropriation for
the Assistance to States for the Education of Children with
Disabilities program exceeds $4,924,672,200 are eligible to receive
base payments.
In addition, if the boundaries of LEAs that were in existence or
administrative responsibility for providing services to children with
disabilities ages 3 through 21 are changed, adjustments to the base
payments of the affected LEAs also should be made. For example, a
change in administrative responsibility might encompass a change in the
age range for which an LEA is responsible for providing services such
as where responsibility for serving high school students is transferred
from one LEA to another.
These adjustments will ensure that affected LEAs equitably share in
their base payments. The base amounts for new and previously existing
LEAs, once recalculated, should become the new base payments for the
LEAs. These base payments would not change unless the payments
subsequently need to be recalculated pursuant to Sec. 300.712.
Adjustments to base payments would be based on the current numbers
of children with disabilities served as determined by the SEA. In
making a determination, the SEA may exercise substantial flexibility.
For example the SEA may choose to revise base payments based on the
current location of children with disabilities included in a previous
child count or a new count of children served by affected LEAs.
Changes: Section 300.712 has been revised to clarify that, if LEAs
are created, combined, or otherwise reconfigured subsequent to the base
year (i.e. the year prior to the year in which the appropriation under
section 611(j) of the Act exceeds $4,924,672,200), the State is
required to provide the LEAs involved with revised base allocations
calculated on the basis of the relative numbers of children with
disabilities ages 3 through 21, or 6 through 21 depending on whether
the State serves all children with disabilities ages 3 through 5,
currently provided special education by each of the affected LEAs.
Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
Discussion: The note following this section in the NPRM indicates
that States should use the best data available to them in making
allocations based on school enrollment and children living in poverty.
The note also encourages LEAs to include data on children who are
enrolled in private schools and suggests alternative sources such as
aggregate 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 as bases for
determining poverty. These suggestions still reflect options for
allocating funds, but need not be specified in the regulations. The
requirement for States to use the best data available to them should be
included in the regulations.
Changes: The note has been removed and Sec. 300.712 has been
expanded to state that for the purpose of making grants under this
section, States must apply, on a uniform basis across all LEAs, the
best data that are available to them on the numbers of children
enrolled in public and private elementary and secondary schools and the
numbers of children living in poverty.
Former Chapter 1 State Agencies (Sec. 300.713)
Comment: Commenters indicated that Sec. 300.713, which mirrors the
statutory language regarding payments to former Chapter 1 State
agencies, should be clarified to indicate that these agencies must
receive the current amount of their Part B allocation, rather than an
amount that would not exceed the fiscal year 1994 per child amount.
Otherwise, the result would be a reduction of allocations to these
agencies. The commenters recommended adding a new paragraph (c) to
Sec. 300.713 to provide that, in years where the per child amount under
Part B exceeds the per child amount for fiscal year 1994, each State
agency shall receive the per child amount under Part B for each child
to whom the agency is providing special education and related services
in accordance with an IEP.
Other commenters indicated the need to clarify that payments to
former Chapter 1 State agencies are targeted for direct service costs
as in the past. Several commenters believe that payments to former
Chapter 1 State agencies must follow the child, and recommended
inserting the phrase ``including State-operated and State-supported
school programs'' after 1994 at the conclusion of Sec. 300.713(a) to
ensure that the children who are counted actually receive the funds for
which they are eligible.
Some commenters stated that the merger of the former Chapter 1
Handicapped program with Part B had a negative effect at the State
level on
[[Page 12649]]
private special education schools, because funds intended for children
are now being used by many States for both State and municipal
administrative costs. Other commenters recommended, consistent with the
intent of the merger of the former Chapter 1 Handicapped program with
Part B, that these schools should be treated as LEAs for funding
purposes, regardless of whether they meet the Part B definition of LEA.
One commenter took issue with the fact that the Act specifies a
reporting date of December 1 of the fiscal year, while the proposed
regulation allows a State, at its discretion, to report on December 1
or on the last Friday of October. Since the Act sets a specific date,
this commenter requests that only the statutory date be used in the
regulation.
Discussion: Funds provided to former Chapter 1 State agencies that
exceed fiscal year 1994 levels are provided either because the amounts
to which former Chapter 1 State agencies are entitled as LEAs, without
regard to their status as former Chapter 1 agencies, exceed the minimum
allocations for former Chapter 1 agencies, or at the discretion of the
States from funds available to be set aside for State level activities.
The IDEA Amendments of 1997 maintain, in section 611(f), as
reflected in Sec. 300.370(a), the flexibility of States to provide
additional support to State agencies beyond the formula entitlement of
LEAs under Sec. 300.712. It would be inappropriate, as well as
inconsistent with the Act, to compel States that have voluntarily
passed through higher levels of funding to State agencies in the past
to maintain those levels of funding as a requirement.
There has been confusion in some States regarding the entitlement
of former Chapter 1 Handicapped State agencies to funds distributed by
formula to LEAs that would be above the amounts these State agencies
received per child for 1994 under the Chapter 1 Handicapped program.
Under the IDEA, both before and after enactment of the IDEA Amendments
of 1997, the amounts to which these State agencies are entitled are
minimum amounts. Former Chapter 1 Handicapped State agencies are
entitled to formula allocations in the same amounts as other LEAs. They
may also be eligible for additional payments to bring their funding
levels per child up to the levels they received under the Chapter 1
Handicapped program for fiscal year 1994.
Under the initial allocation of fiscal year 1998 funds, which
became available on July 1, 1998, the minimum per child allocations
that former Chapter 1 Handicapped State agencies are entitled to as
LEAs exceeds the amount per child that these agencies received for
fiscal year 1994 under the Chapter 1 Handicapped program in 40 States.
SEAs in these States must provide former Chapter 1 Handicapped State
agencies at least the minimum amount per child that they are entitled
to as LEAs, not the lesser amounts that they received per child under
the Chapter 1 Handicapped program for 1994.
For 10 States and the District of Columbia, the minimum per child
amounts to which former Chapter 1 Handicapped State agencies are
entitled as LEAs are still slightly smaller than the amounts that these
agencies received per child for 1994 under the Chapter 1 Handicapped
program. In these States, SEAs must provide the former Chapter 1
Handicapped State agencies with the amounts per child that these
agencies are entitled to as LEAs. SEAs must then provide additional
funds to the former Chapter 1 Handicapped State agencies from the
amounts that the SEAs set aside for State level activities. The amount
of these additional funds is equal to the difference between the amount
per child that the former Chapter 1 State agencies received under the
Chapter 1 Handicapped program for 1994 and the amount per child they
receive as LEAs, multiplied by the lesser of the number of children
ages 6 through 21 currently served by the former Chapter 1 Handicapped
State agencies or the number of children ages 3 through 21 served by
these agencies for 1994 under the Chapter 1 Handicapped program.
It is expected that for the Federal fiscal year 1999 appropriation,
which will become available on July 1, 1999, the minimum per child
amounts that will be provided to all LEAs, including former Chapter 1
Handicapped State agencies, will exceed the per child allocations under
the Chapter 1 Handicapped program in all States.
Former Chapter 1 agencies are subject to the same requirements as
other LEAs, and are not limited to using Part B funds only for direct
service costs.
Adding the phrase ``including State-operated and State-supported
school programs'' after ``1994'' at the conclusion of Sec. 300.713(a)
would not ensure that the children who are counted actually receive
funds. Moreover, the last paragraph in Sec. 300.713(a) deals with the
optional use of funds available for State level activities to increase
funding for LEAs that formerly served children who had at one time been
in State-operated or State-supported programs, not to increase funding
for State-operated and State-supported programs themselves. However,
States, at their discretion, may use funds available for State level
activities to provide support for State-operated or State-supported
programs under Sec. 300.370.
It should also be noted that, under the Act, States are required to
ensure that all children with disabilities have access to a free
appropriate public education regardless of the sources of funds that
are used to provide that education. Ensuring that specific amounts of
Federal funds are used for each of the 6 million children with
disabilities who receive special education services would be
administratively unwieldy and would not necessarily help to ensure that
States meet this requirement.
The Chapter 1 Handicapped program was merged with the IDEA Part B
Assistance to States for the Education of Children with Disabilities
program in 1995. The merger was not affected by the IDEA Amendments of
1997, and its impact cannot be addressed by these regulations.
Section 602(15) of the Act defines LEA as including educational
service agencies. Educational service agencies are defined in section
602(4) of the Act and Sec. 300.10 as including public institutions or
agencies having administrative control and direction over a public
elementary or secondary school. State agencies formerly provided
funding under the Chapter 1 Handicapped program and which continue to
provide special education and related services to children with
disabilities fall within this definition. Individual schools that
received funding through State agencies under the Chapter 1 Handicapped
program are not LEAs under the Part B Assistance to States for the
Education of Children with Disabilities program.
Section 611(d)(2) of the Act specifies that, for the purpose of
allocating funds among States, States may report children either as of
December 1 or the last Friday in October of the fiscal year for which
funds are appropriated. Using the same dates for establishing minimum
funding levels for former Chapter 1 Handicapped State agencies will
reduce burden on States that count children in October by eliminating
the need for a separate count of children served by State agencies in
December.
Changes: Language has been revised in paragraph (a)(1) to clarify
that the amount that each former Chapter 1 State agency must receive is
a minimum amount.
[[Page 12650]]
Reallocation of LEA Funds (Sec. 300.714)
Comment: One commenter recommended that this section be eliminated
because it causes a disincentive for LEAs to provide ``adequate'' or
even more than ``adequate'' FAPE.
Another commenter stated that the regulation must provide the State
agency with a basis for determining 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, and indicated that there is a
need for guidance on criteria for determining when any portion of the
funds allocated under this part may be removed. Criteria suggested by
the commenter for this purpose include: (1) IEP related measures such
as appropriateness of measurable IEP goals and a high percentage of
annual goals successfully completed; (2) educational inputs such as
student staff ratios including related services staff; and (3) a
relatively large amount of unexpended IDEA funds.
Discussion: The authority of SEAs to reallocate funds among LEAs if
they determine that an LEA is adequately providing FAPE to all children
with disabilities residing in the area served by the LEA and that the
LEA does not need those funds to provide FAPE, is included in section
611(g)(4) of the Act. This authority cannot be removed through
regulations. However, it is expected that SEAs would use this authority
only in unusual circumstances (e.g., when there is a radical reduction
in the number of children served by a LEA).
Moreover, the instances in which an SEA would reallocate the funds
of an LEA because the LEA is providing adequate services and does not
need the funds should be relatively rare, and the circumstances causing
such a determination also should be unusual.
It would be very difficult to establish criteria that could be
appropriately and fairly applied in all cases. For this reason, the
criteria for determining these instances should be left at the
discretion of the States.
Changes: None.
Payments to the Secretary of the Interior for the Education of Indian
Children (Sec. 300.715)
Comment: None.
Discussion: The reference to ``this section'' in paragraph (a)
should also include a reference to Sec. 300.716 because the earmarked
funds include Indian children covered under both sections.
Changes: The term ``this section'' in Sec. 300.715(a) has been
revised to read ``this section and Sec. 300.716.''
Limitation for Freely Associated States (Sec. 300.719)
Comment: None.
Discussion: The references to ``this part'' in paragraph (c) of
this section should be changed to ``Part B of the Act.''
Changes: Section 300.719 (c)has been amended, consistent with the
above discussion.
Annual Report of Children Served--Report Requirement (Sec. 300.750)
Comment: Several commenters objected to the note following
Sec. 300.750 of the NPRM, stating that it reflects only the
requirements of prior law, and not all requirements in the current
section 611 of the Act. The commenters recommended that, if the note is
retained, it needs to be revised to conform more closely to the current
language used in the Act. For example, the references in the note to
section 611(a)(5) of the Act should be deleted, since that section no
longer exists. Also, the population that a State may count for
allocation purposes no longer differs from the population of children
to whom the State must make FAPE available, and this needs to be
explained in the note.
Another commenter recommended that the regulations on annual SEA
reports to the Department be amended to include the requirements of
section 618(a)(1)(A) of the Act.
Discussion: The note following this section in the NPRM indicates
that the number of children who are counted for the purpose of
distributing funds may be different from the children for whom the
States must make FAPE available. In order to receive full funding under
Part B of the IDEA, States must provide services to all children with
disabilities ages 3 through 17, and to children 18 through 21 when not
inconsistent with State law or practice, or the order of any court.
These statements in the note reflect the requirements of IDEA. However,
consistent with the decision to not include notes in the final
regulations, the note should be deleted.
It should be noted that until the appropriation for the Assistance
to States for the Education of Children with Disabilities program
exceeds $4,924,672,200, the interim formula requires that funds be
distributed based on the number of children served, and the limitations
in section 611(a)(5) of IDEA prior to the IDEA Amendments of 1997,
which prohibit the Secretary from counting more than 12 percent of
children with disabilities in certain cases, will be in effect until
that time.
The content of the report is addressed in Sec. 300.751. The
reporting requirements in section 618 of the Act are complex. The
Secretary believes that it would be better to address the data
reporting requirements of the new section 618 as part of the clearance
process for data collection rather than through these regulations.
Changes: The note has been removed.
Annual Report (Sec. 300.751)
Comment: Commenters stated that while Sec. 300.751(a) specifies the
information that must be included in the report for any year before the
total appropriation for section 611 of the Act first exceeds
$4,924,672,200, it is unclear what information should be included in
the report after that date. The commenters indicated a need for this
clarification in the regulation.
Other commenters recommended that the regulation clarify that if a
child is deaf-blind, that child must be reported under that category,
and if the child has more than one disability (other than deaf-
blindness), that child must be reported under multiple disabilities.
These commenters also requested that the regulations explain that the
responsibility for the annual census count of deaf-blind children
should be with the single and multi-State deaf-blind projects.
Discussion: Before the total appropriation for section 611 of the
Act first exceeds $4,924,672,200, a count of children ages 3 through 21
will be used for distributing funds. After this level is reached, data
on the number of children served will continue to be necessary due to
the requirement in section 611(a)(2) of the Act that no State be
allocated an amount per disabled child served greater than 40 percent
of the average per-pupil expenditure in public elementary and secondary
schools in the United States. The language in Sec. 300.751 should
reflect this requirement. In addition, data included in the report does
not necessarily reflect the flexibility potentially available to the
States to use sampling to collect data or new data reporting
requirements for children ages 3 through 9.
The NPRM provided that a child with deaf-blindness must be reported
under the category ``deaf-blindness'' and that a child who has more
than one disability, other than deaf-blindness, must be reported under
the category ``multiple disabilities''.
The single and multi-State deaf-blind projects, which are funded
under discretionary awards under Part D of the Act, are not responsible
for conducting a census count of deaf-blind children. Those projects
were required to report on the number of children with deaf-blindness
that they serve. These Part
[[Page 12651]]
300 regulations set out the requirements for participation of States
under Part B of the Act.
Changes: This section has been reworded to reflect in paragraph (a)
data required for the distribution of funds, including data on the
numbers of children with disabilities that are provided special
education and related services in the age groupings 3 through 5, 6
through 17, and 18 through 21. The remainder of the section has been
revised to reflect the Secretary's ability to permit sampling to
collect data, new data collection requirements in the Act, and to
clarify that children who are not classified as developmentally delayed
and who have two disabilities consisting of deafness and blindness
should be reported under the category of ``deaf-blind''.
Annual Report of Children Served--Certification (Sec. 300.752)
Comment: None.
Discussion: The certification of an accurate and unduplicated count
of children with disabilities receiving special education and related
services on the dates in question is critical only with regard to
obtaining information needed for the allocation of funds.
Changes: The certification of an accurate and unduplicated count
has been limited to the data required under Sec. 300.751(a), which, as
revised, is limited to information required to make funding allocations
to States.
Annual Report of Children Served--Criteria for Counting Children
(Sec. 300.753)
Comment: None.
Discussion: Children with disabilities who are enrolled by their
parents in private schools should be able to be counted by LEAs if
those children receive special education or related services, or both,
that are provided in accordance with a services plan and meet the
requirements of Secs. 300.452-300.462. The language in the NPRM could
have been read to require that children with disabilities enrolled by
their parents in private schools be provided all of the related
services they need to assist them in benefitting from special education
in order for the LEAs to count these children.
Changes: Section 300.753 has been revised to permit LEAs to count
private school children with disabilities who are receiving special
education or related services, or both, that meet standards and are
provided in accordance with Secs. 300.452-300.462.
Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
Discussion: Note 1 following this section in the NPRM indicated
that States 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. All children who are counted must be enrolled in a school or
program providing special education or related services that is
operated or supported by a public agency. However, a child with a
disability may also be enrolled in a private school. All children who
are counted must be provided with services that meet State standards
regardless of whether they are also enrolled in a private school.
Note 2 to this section in the NPRM indicated that where a child
receives special education from a public source at no cost, but whose
parents pay for the basic or regular education, the child may be
counted. The revised Sec. 300.753 more clearly reflects the fact that
children with disabilities enrolled by their parents in private schools
are eligible to be counted. This is true whether the curriculum of the
school consists of basic or regular education, or special education.
Note 2 also indicated that the Department expects that there would
only be limited situations in which special education would be clearly
separated from regular education--generally, if speech services are the
only special education required by the child. This expectation is not
consistent with the flexibility that LEAs have in providing services to
children in private schools.
As Note 2 indicated, 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.
If a public agency places or refers a child with disabilities to a
public or private school for educational purposes, parents may not be
charged for any part of the child's education.
Changes: The notes have been removed, and language has been added
to Sec. 300.753 to clarify that, in order for a State to count
children, the children must be enrolled in a school or program that is
operated or supported by a public agency, and that they may not count
children who are served solely through Federal programs, including
programs of the Departments of Interior, Defense, and Education except
as covered under Sec. 300.184(c)(2).
Annual Report of Children Served--Other Responsibilities of the State
Education Agency (Sec. 300.754)
Comment: One commenter recommended that the SEA should be required
to sanction LEAs for providing intentionally misleading or false
information about the number of children with disabilities receiving
special education and related services within the LEA's jurisdiction.
Discussion: The IDEA Part B Assistance to States for the Education
of Children with Disabilities program is administered primarily through
SEAs. It is in the individual State's interest as well as the national
interest to ensure that counts of children are accurate; requiring
sanctions for LEAs that provide intentionally misleading or false
information would be unnecessary and overly prescriptive. The IDEA
allows States to impose sanctions subject to the requirements of the
Act.
Changes: None.
Comment: None.
Discussion: Section 300.754(d) refers to ``reports'' under
Secs. 300.750-300.753. These sections refer to only one report.
Changes: The word ``reports'' has been changed to ``report''.
Comment: A number of commenters requested that notes be deleted
from the regulations implementing Part B of IDEA.
Discussion: The note following this section in the NPRM indicates
that data required in the annual report of children served are not to
be transmitted to the Secretary in personally identifiable form, and
that States are encouraged to collect these data in non-personally
identifiable form. The formats used by the Secretary for collecting
data do not provide for individual identification of children. The
formats for data collection by States are a matter of State discretion.
Changes: The note has been removed.
Disproportionality (Sec. 300.755)
Comment: Commenters recommended that the regulation define what
constitutes a significant disproportionality based on race in the
identification, labeling, and placement of children with disabilities,
thus triggering the obligation to review and revise, as appropriate,
identification and placement policies, practices and procedures.
Another commenter recommended additional language requiring
consultation with parent training and information centers, parent and
civil rights advocacy groups, and others, during this process. Other
commenters suggested that data be
[[Page 12652]]
collected annually when the child count is submitted, and that a
requirement should be added that data be analyzed. If
disproportionality is found, a corrective action plan must be developed
by the SEA, and such a plan should be reported to the Secretary and to
the public annually.
Another commenter was supportive of the requirement in Sec. 300.755
but noted that, because many BIA schools are serving American Indian
children from wide catchment areas, an increasing number of children
with disabilities are enrolling in these schools for what may be valid
reasons. The commenter recommended a requirement for review and
revision of policies by representatives of the Department of the
Interior who have experience in the unique political, cultural, and
geographical issues affecting the identification of these children as
disabled and in need of special education and related services.
Discussion: The Act provides that the States and the Secretary of
the Interior must collect data, determine if disproportionality exists,
and take corrective action. In order for States and the Department of
the Interior to determine if disproportionality exist they must
establish criteria for determining what constitutes significant
disproportionality. It is expected that the determination of
disproportionality will involve consideration of a wide range of
variables peculiar to each State including income, education, health,
cultural, and other demographic characteristics in addition to race.
Prescribing how the States should determine disproportionality and take
corrective action would not reflect the varied circumstances existing
in each State and is not consistent with discretion afforded to States
under the statute.
It should also be noted that the Department's Office for Civil
Rights also looks at disproportionality in its review of State and
local activities, and that the Office of Special Education Programs
will monitor to ensure compliance with this requirement.
The determination of disproportionality is separate from a
determination as to whether any corrective action is appropriate. The
Secretary of the Interior is expected to utilize knowledgeable
individuals to determine if corrective action is called for in a
particular instance.
Changes: None.
Part C
The following is an analysis of the significant issues raised by
the public comments received on the NPRM published on October 22, 1997
(62 FR 55026) for the Early Intervention Program for Infants and
Toddlers with Disabilities. The Department solicited comments on
proposed changes to six regulatory provisions in the Early Intervention
Program for Infants and Toddlers with Disabilities, formerly known as
Part H of the Individuals with Disabilities Education Act (IDEA).
Effective July 1, 1998, Part H of IDEA (Part H) was relocated to Part C
of IDEA (Part C). The proposed changes were made to conform Part C to
proposed changes in Part B of IDEA. On April 14, 1998, the Department
published technical changes to the Part C regulations to incorporate
statutory changes to Part C made by the IDEA Amendments of 1997 (63 FR
18290). A notice requesting advice and recommendations on Part C
regulatory issues was also published on April 14, 1998 (63 FR 18297).
Although the deadline for comments on Part C regulatory issues was July
31, 1998, the Department reopened the comment period by publishing
another notice on August 14, 1998 (63 FR 43865-43866).
In response to the Department's invitation in the NPRM published on
October 22, 1997, several parties submitted comments on the proposed
regulations. An analysis of the comments and of the resulting changes
in the regulations follow. Substantive issues are discussed under the
section of the regulations to which they pertain. Technical and other
minor changes--'' and suggested changes the Department is not legally
authorized to make under the applicable statutory authority ``--are not
addressed. All Part C provisions amended by these regulations that were
not the subject of the NPRM are amended only to conform provisions to
statutory changes to Part C made by the IDEA Amendments of 1997, or to
conform technical provisions to changes made to the Part B regulations.
Goals 2000: Educate America Act
Comment: One commenter asked how the Goals 2000: Educate America
Act (Goals 2000) would be implemented for infants and toddlers with
disabilities, in particular how the first goal of all children in
America starting school ready to learn would be realized for infants
and toddlers with disabilities. The commenter asked if there would be
definitions or criteria promulgated pursuant to Goals 2000 regarding an
infant's or toddler's readiness to learn.
Discussion: The National Education Goals are goals, not
requirements; no definitions or criteria are necessary to specify how
States should make progress towards goal one, ``All children in America
will start school ready to learn.'' Children with developmental delays
are likely to experience poor educational results because of a
disability without appropriate early intervention. By addressing the
effects of a disability or complications that could arise if services
are not provided, these children will have a greater likelihood of
better results, and require less intensive or possibly no special
services, when they are ready to enter school. The Part C Early
Intervention Program helps States to address the needs of infants and
toddlers with disabilities and their families by promoting child find
activities, implementing family-focused service systems, coordinating
early intervention services on a statewide basis, and providing
critical services that otherwise would not be available. As such, the
program plays a major role in improving the school readiness of these
young children and meeting the National Education Goal of ensuring that
every child enters school ready to learn.
Changes: None.
General Comments
Comment: Several of the commenters requested that the Department
issue a full notice of proposed rulemaking (NPRM) for the Part C
program. Commenters questioned why the particular regulatory provisions
in the October 22, 1997 NPRM were singled out for revision. Many
requested generally that the Department clarify the statutory
amendments to Part C, such as the provisions regarding natural
environments.
Discussion: The six provisions related to Part C in these
regulations have been revised in order to achieve consistency with
parallel Part B regulations. Regarding the remainder of the Part C
regulations, the Department solicited comments regarding all of the
Part C regulations on April 14, 1998, and extended the comment period
on August 14, 1988. Comments received in response to the October 22,
1997 NPRM regarding Part C regulations that were not the subject of
that NPRM will be retained and considered with the comments received
pursuant to the April 14 and August 14, 1998, solicitations. However,
additional submissions from those same commenters are welcome.
These final regulations contain several technical changes that were
not included in the April 14, 1998 regulatory changes. All of these
changes will be included in the next version of Part C regulations
published in the Code
[[Page 12653]]
of Federal Regulations (CFR), which is revised each year.
As with the final Part B regulations published in this issue of the
Federal Register, these final Part C regulations will not contain
notes. The critical substantive portions of the notes will be
incorporated into the corresponding regulatory provision or the
applicable discussion section in this preamble. Other information from
the notes will be deleted.
Changes: None.
Definition of Parent (Sec. 303.18)
Comment: There were a few comments regarding the revisions to the
definition of parent at Sec. 303.18. Some commenters liked the changes
and some objected to the changes. Commenters who objected did so
primarily because the proposed changes were perceived to conflict with
prior OSEP opinions and ultimately result in fewer children having
``parent'' representation at meetings. Commenters also asked what
constitutes a ``long-term parent relationship'' for an infant or
toddler.
Discussion: The changes to the definition of parent under Part C
are to clarify that the definition is an inclusive one and to conform
Part C to Part B for consistency and continuity purposes. The changes
should result in more, rather than fewer, children having parental
representation, as the regulation clarifies that foster parents may, in
appropriate circumstances, unless prohibited by State law, serve as
parents. Under these regulations, the term ``parent'' is defined to
include persons acting in the place of a parent, such as a grandparent
or stepparent with whom the 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.
With respect to the meaning of ``long-term parental relationship,''
this term was included to ensure that when a child is in foster care,
decisions regarding services are made by the foster parents only if
they have had, or will have, a parental relationship that is on-going
rather than temporary. The goal is that decisions regarding services
will be made only by those who have or will have a substantive
understanding of the child's needs. Thus, for example, a parental
relationship would be considered ``long-term'' if (1) at the time the
relationship is created, it is intended to be a long-term arrangement,
or (2) the relationship has existed for a relatively long period of
time. For older children, States could require a more lengthy time
period than would be appropriate for infants and toddlers.
Several changes to this provision are in response to comments
regarding the corresponding provision in the Part B regulations
(Sec. 300.20). The general definition of ``parent'' is amended to make
clear that adoptive parents have the same status as natural parents. In
addition, to avoid conflict with State statutes, a provision is added
permitting the use of foster parents under these regulations unless
State law prohibits foster parents from acting as parents for these
purposes. For further explanation of the changes, see the discussion
regarding 34 CFR 300.20 in the preamble to the final Part B
regulations.
Changes: Section 303.18 has been amended to specifically include
adoptive parents, and to permit States in certain circumstances to use
foster parents as parents under the Act without amending relevant State
statutes on the definition of ``parent''. The substance of the note has
been incorporated into the regulations, and the note has been deleted.
Prior Notice (Sec. 303.403)
Discussion: No comments were received regarding proposed
Sec. 303.403(b)(4), and it is included in these final regulations.
However, given the comments regarding the parallel section under Part
B, and the fact that Part C does not have a separate procedural
safeguards notice, Sec. 303.403(b)(3) is changed to make clear that the
notice given under this section must contain all procedural safeguards
under Part C, including the new mediation procedures in Sec. 303.419.
Changes: Section 303.403(b)(3) is amended to clarify that the
notice must inform parents about all procedural safeguards available
under Secs. 303.401-303.460.
Adopting Complaint Procedures (Sec. 303.510)
Comment: One commenter requested that the Department clarify how
frequently States are required to disseminate their State complaint
procedures in proposed Sec. 303.510(b); the commenter also asked that
the requirement include provisions for limited-English speakers and
non-readers.
Discussion: It is unnecessary to specify a frequency for
dissemination of State complaint procedures; States have the
responsibility to ensure that their publicly-disseminated State
complaint materials are distributed to parents, as well as to the other
required entities, and to ensure that the materials are kept up to
date. In addition, the lead agency is now required to provide an
explanation of the State complaint procedures to parents at the various
times specified in Sec. 303.403(b)(4), as part of the ``prior notice''
requirement. The requirements of Sec. 303.403 regarding prior notice
include communicating the notice in the parents' native language or
other mode of communication; therefore, it is unnecessary to add those
provisions to Sec. 303.510.
Because a new paragraph (b) is added to this section (see
discussion below), the language in proposed (b) from the NPRM is moved
to paragraph (a)(2) of this section.
Changes: A portion of the existing note is incorporated into
Sec. 303.510(a) and the note is removed. Proposed Note 2 is
incorporated into the regulation as new Sec. 303.510(b); the language
in proposed Sec. 303.510(b) is moved to new Sec. 303.510(a)(2). In
addition, the language in the proposed note following Sec. 303.511
regarding complaints from out of State is incorporated into
Sec. 303.510(a)(1).
Comment: Several commenters requested clarification of the
provision regarding compensatory services in Note 2 to proposed
Sec. 303.510. Compensatory services are also referenced in proposed
Sec. 303.511(c). One commenter stated that compensatory services are
not appropriate for infants and toddlers receiving services under Part
C; services are already year-round, and because the frequency and
intensity of services are individually tailored to the child's needs in
the IFSP, supplementing those services would not be appropriate. This
commenter noted, however, that families who procure services at their
own expense because an IFSP was not implemented in a timely manner
should be able to receive reimbursement. Another commenter stated that
additional public discussion is needed before finalizing this provision
regarding compensatory services. The commenter raised questions
concerning how compensatory services would be funded and provided by a
lead agency before a child turns three years old, how such services
would be funded and provided after the child turns three, and how such
post-Part C services would be integrated with the child's special
education services. Another commenter requested the Department's
``vision'' for the proposed application of this regulation.
Discussion: The note reflected what has always been the case ``--
that lead agencies have the authority to order remedies in appropriate
circumstances for a violation of Part C in resolving complaints under
the procedures in Secs. 303.510-303.512. However,
[[Page 12654]]
consistent with the decision to remove notes from the Part B
regulations, and to emphasize the importance of lead agency action to
resolve complaints in a way that provides individual relief when
appropriate and addresses systemically the provision of appropriate
services, a provision is added to this section. The provision clarifies
that if the lead agency has found a failure to provide appropriate
services to an infant or toddler with a disability through a complaint,
the resolution must address both how to remediate the denial of
services, and how to provide appropriate services for all infants and
toddlers with disabilities in the State and in the future. While
recognizing that compensatory services, in the sense used under Part B,
may be inappropriate for an infant or toddler in many instances, it
should not be precluded where it is an appropriate corrective action as
determined by the lead agency based on the individual circumstances.
Lead agencies retain the authority, responsibility, and flexibility to
construct appropriate remedies in individual cases in order to obtain
the results needed for the child and family. Possible remedies may
include reimbursement of sums spent by a parent, services--compensatory
or otherwise, or other appropriate corrective action.
Regarding the issue of a complaint filed after a child turns three
and is no longer eligible for Part C services, if parents have a
complaint about the services received or not received by their child
while an infant or toddler, those parents would properly file the
complaint with the lead agency that had responsibility for the child
during that time period, even if the child has ``aged out'' of the Part
C program at age three. That lead agency has the responsibility to
resolve and, as appropriate, investigate the complaint, and award
appropriate corrective action, which may need to be designed by working
with the SEA if the child is Part B-eligible, or by working with other
appropriate service providers if the child is not Part B-eligible.
These regulations do not prevent parents from filing a complaint with
the lead agency after the child leaves the Part C program. In addition,
if the alleged violation is systemic, corrective action would be
required in order to ensure that a violation does not continue for
other infants and toddlers. However, to prevent undue burden on lead
agencies from very old cases, Sec. 303.511(b) contains time limitations
on complaints.
Changes: A new paragraph (b) has been added to Sec. 303.510 to
address how a lead agency remedies a denial of appropriate services, in
place of proposed Note 2. Proposed paragraph (b) has been moved to new
Sec. 303.510(a)(2).
Filing a Complaint (Sec. 303.511)
Comment: Two commenters objected to the one-year time limit for
filing a complaint in proposed Sec. 303.511(c). They stated that
parents are often not knowledgeable about their rights at their first
entrance into a complex system, and that violations may not be apparent
until after the child exits the system. The commenters stated that the
one-year limit may also conflict with existing State laws governing
administrative proceedings. These commenters also questioned when it
would be appropriate for an organization to file a complaint, and asked
why the proposed note states that lead agencies must resolve complaints
filed by entities from another State.
Discussion: The time limits in proposed Sec. 303.511(c) were added
in recognition that at some point the issues in a complaint are no
longer reasonably susceptible to resolution. However, such a time limit
should include an exception for continuing violations; this would
include a violation for a specific child, e.g., one that began when an
infant was 4 months old and still continues at age two, as well as
violations that continue on a systemic basis and affect other children.
The regulation also includes a three-year time limit for cases in which
a parent requests reimbursement or corrective action. As evidenced by
the comments on the issue of compensatory services under Part C (see
discussion regarding Sec. 303.510 above), compensatory services may not
be an appropriate remedy in some cases. Therefore, the language
regarding the three-year limit in these regulations should be changed
to describe more accurately the remedies that may be requested, such as
a parent's request for reimbursement for amounts spent to provide
services in the IFSP that were not provided by the lead agency.
As noted above in the response to comments on Sec. 303.510, these
regulations do not prohibit individuals from filing a complaint with
the lead agency after the child has left the Part C system, and
require, within the timeframes noted, that the State resolve the
complaint. In addition, States are free to accept and resolve
complaints regarding alleged violations that occurred outside these
timelines, just as they are free to add additional protections in other
areas that are not inconsistent with the requirements of the Act and
its implementing regulations. If a State law provided a more generous
timeline for filing complaints, the State could certainly use that
timeline; it could, in the alternative, amend its State law to be as
restrictive, but not more restrictive, than these Federal regulations.
Regarding the issue of when it is appropriate for an organization,
rather than an individual, to file a complaint, the State complaint
procedures broadly permit any organization to file a complaint alleging
that the State is violating IDEA, in order to permit entities, as well
as individuals, that become aware of violations to raise them. With
regard to the statement in the note that the lead agency must resolve
complaints even if received from an individual or organization outside
of the State, the lead agency is responsible for ensuring compliance
with Part C. A complaint about implementation of the Act filed by an
organization or individual outside of the State is an additional means
of bringing compliance issues to the State's attention. To be
consistent with the decision to remove all notes from the Part B
regulations, and to make clear that complaints from out-of-State
organizations or individuals must also be resolved, that concept is
integrated into Sec. 303.510(a)(1).
Changes: The language in proposed Sec. 303.511(c) has been moved to
paragraph (b) and changed to describe more accurately the remedies that
could be requested under the three-year limitation for State
complaints. The note following Sec. 303.511 regarding complaints filed
by organizations or individuals from another State has been deleted,
and the substance of the note has been moved to Sec. 303.510(a)(1).
Minimum State Complaint Procedures; Timelines (Sec. 303.512)
Comment: One commenter asked whether eliminating the right to
request Secretarial review would eliminate all potential appeals of a
State's decision. The commenter requested that a note be added to
reference other procedures still available if the complainant is not
satisfied with a State's decision.
Discussion: If a complainant who wishes to contest a lead agency's
decision on a State complaint is a parent, he or she may request a due
process hearing under Sec. 303.420 concerning a child's identification,
evaluation, or placement, or the provision of appropriate early
intervention services to the child and the child's family. In addition,
States must make mediation under Sec. 303.419 available, at a minimum,
when a parent requests a due process hearing. States
[[Page 12655]]
may provide for mediation at an earlier stage, thereby allowing for
informal dispute resolution before or after the State complaint
process, preventing the need for a due process hearing. However,
mediation may not be used to deny or delay the parents' right to due
process. The previous existence of the option to request Secretarial
review was not a substitute for these other procedural rights for
parents. It is not necessary to add a note describing these other
procedural safeguards in Sec. 303.512, as they are adequately described
elsewhere in these regulations.
The substance of the notes following this section is incorporated
into Sec. 303.512. The language of proposed Note 1 references a
complaint that is also the subject of a due process hearing, but does
not discuss the situation of a complaint that also becomes the subject
of a mediation proceeding. Although the IDEA Amendments of 1997
encourage the use of mediation as a dispute resolution tool, a party's
mediation request should not serve as an excuse for a State to delay
the State complaint resolution timelines. Therefore, a mediation
proceeding should not in and of itself be considered an ``exceptional
circumstance'' under Sec. 303.512(b) so as to extend the 60-day time
limit for resolution of complaints, unless the parties agree to such an
extension.
Changes: Paragraphs (b) and (c) have been combined into a new
paragraph (b). A new paragraph (c) has been added to clarify that if an
issue in a complaint is the subject of a due process hearing, that
issue (but not those outside of the due process proceeding) would be
set aside until the conclusion of the due process hearing, and that the
hearing decision regarding an issue in a due process hearing would be
binding in a State complaint resolution; however, a public agency's
failure to implement a due process decision would have to be resolved
by the lead agency. The notes following this section have been removed,
and their substance incorporated into Sec. 303.512.
Policies Related to Payment for Services (Sec. 303.520)
Comment: There were many comments regarding the use of private and
public insurance under Part C. A few commenters supported proposed
Sec. 303.520(d) and (e), as well as corresponding notes. Supporting the
provision in proposed Sec. 303.520(d) on requiring families to use
private insurance only if there are no costs, parents of children with
disabilities described the financial costs and resulting hardship to
them when required to use private insurance to pay for services.
Many commenters opposed the proposed changes. Regarding the use of
private insurance, many stated that the policies in proposed
Sec. 303.520(d) and Notes 1 and 2 contradict the ``payor of last
resort'' concept underlying Part C. Many commenters referred to the
policy in Sec. 303.527 that Part C Federal funds are to supplement
existing sources of funds, not provide full support, for early
intervention. Commenters stated that prior to Part C, private insurance
would have been the payor of first resort for many early intervention
services, and Medicaid the secondary source of payment.
Commenters also stressed that, because FAPE does not apply to Part
C, basing Sec. 303.520(d) on the Notice of Interpretation published in
1980 regarding Part B, six years prior to the passage of Part C, is
invalid. Further, in emphasizing the differences in Part B and Part C
policy, commenters noted that under Part B, services are to be provided
at no cost to the parents, whereas under Part C parents may be required
to pay fees for services. Commenters stated that it is contradictory to
allow systems of payment, but prohibit the use of private insurance if
there is a financial cost to families. A few commenters also stated
they believed the Department did not adequately determine whether or
not there is a cost to parents in requiring the use of private
insurance, and that a cost-benefit analysis was not done.
Commenters were also very concerned about the impact to Part C
programs nationwide if private insurance is more difficult to access;
some stated that proposed Sec. 303.520(d) could cause States to
eliminate their infant and toddler programs entirely. Commenters stated
that because Federal programs like Medicaid and Title V require that
private insurance must be billed first for services covered in whole or
in part by such insurance, if private insurance is not accessible,
Medicaid or Title V will not be accessible. Some commenters suggested
that the use of private insurance under Part C be treated in the same
manner as it is under Title V and Medicaid and in this way remain in
compliance with the mandate of Sec. 303.527.
In addition, some commenters stated that a policy that allows
parents to deny access to private insurance, thereby requiring the
expenditure of State and Federal funds, has caused private insurance
companies to deny payment for services if Part C potentially covers the
service. Insurance policies also often state that they will not cover
services if deductibles and co-payments are paid for the family instead
of by the family. Commenters also stated that some State statutes
require that private insurance is utilized prior to State funds and the
proposed Sec. 303.520 undermines these statutes.
Regarding public insurance, commenters stated that parental consent
should not be required for access to public insurance, e.g., Medicaid,
if the child is eligible for the public insurance. The commenters also
argued that States should be given the flexibility to require
application for public health insurance as a condition for receiving
early intervention services, not only to enable Part C access to other
sources of funding, but also to ensure that children have access to
health and medical care.
Those commenting against proposed Sec. 303.520(e) and Note 3,
regarding proceeds from insurance, stated that such a rule potentially
precludes putting dollars back into an already under funded program.
Commenters stated that under 34 CFR 80.25, States should be required to
return income received from public and private insurance payments to
the Part C program. Further, if the Department does not require such
reinvestment, commenters requested that it at least remain silent on
the issue rather than risk giving States encouragement for using
insurance reimbursements without any restrictions.
Discussion: As the foregoing comments note, there are many
ramifications to a proposed regulation regarding the use of private and
public insurance under Part C. Therefore, the policy in proposed
Sec. 303.520(d) will not be finalized until more thorough examination
of the issues can be done through the process initiated by the April 14
and August 14, 1998 solicitations for comments, and in light of the
specific Part C statutory language and framework.
However, with respect to the issue of reimbursements in proposed
Sec. 303.520(e) and Note 3, the reasons underlying the changes made to
the corresponding Sec. 300.142(f) in Part B provide support for the
same changes in Part C. This section clarifies that if a public agency
receives funds from public or private insurance for services under
these regulations, the public agency is not required to return those
funds to the Department or to dedicate those funds for use in the Part
C program, which is how program income must be used, although a public
agency retains the option of using those funds in this program if it
chooses to do so. Reimbursements are similar to refunds,
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credits, and discounts that are specifically excluded from program
income in 34 CFR 80.25(a). The expenditure that is reimbursed is
considered to be an expenditure of funds from the source that provides
the reimbursement. Nothing in IDEA, however, prohibits States from
reinvesting insurance reimbursements back into the Part C program, and
this regulatory provision should not be viewed as discouraging such
practice. Reinvestment of insurance reimbursements in the Part C
program is undeniably a valuable method of helping fund the program;
however, to avoid confusion, it is necessary to clarify by regulation
that no current Federal law requires such reinvestment.
In addition, proposed paragraph (e) has been revised to clarify
that funds expended by a public agency from reimbursements of Federal
funds will not be considered State or local funds for purposes of
Sec. 303.124. If Federal reimbursements were considered State and local
funds for purposes of the supplanting prohibition in Sec. 303.124 of
these regulations, States would experience an artificial increase in
their base year amounts and would then be required to maintain a
higher, overstated level of fiscal effort in the succeeding fiscal
year.
Changes: Proposed Sec. 303.520(d), and Notes 1 and 2, are removed;
proposed Sec. 303.520(e) is redesignated as Sec. 303.520(d) with
changes to conform to Sec. 300.142(f); and Note 3 is incorporated into
the text of Sec. 303.520(d).
(Note: This attachment will not be codified in the Code of Federal
Regulations)
Attachment 2--Executive Order 12866
These regulations have been reviewed in accordance with
Executive Order 12866. Under the terms of the order the Secretary
has assessed the potential costs and benefits of this regulatory
action.
Summary of Public Comments
Many commenters expressed concern about the costs and burden of
complying with requirements incorporated into the Assistance to
States for the Education of Children with Disabilities, Notice of
Proposed Rulemaking (NPRM). Commenters complained about the cost of
implementing various statutory requirements incorporated into the
NPRM and identified a variety of requirements in the NPRM not
required by the statute that would increase administrative costs for
school districts. Some commenters talked about the need to employ
additional staff to comply with new requirements and others talked
about the additional paperwork required. Some commenters expressed
concern about the effect of the requirements on the ability of
schools to provide instruction to nondisabled children and the
difficulty teachers and administrators would have in implementing
the proposed regulations. Very few commenters specifically addressed
the Department's analysis of the benefits and costs of the statutory
and non-statutory changes incorporated into the proposed
regulations.
One commenter stated that the analysis of the impact was
inadequate and that the cost to school systems did not appear to be
taken seriously. However, this commenter did not provide comments on
the cost assumptions or analysis of specific items in the NPRM.
One commenter questioned the discussion in the NPRM that
indicated a possible reduction of personnel needed to conduct
evaluations by 25 to 75 percent, and suggested that additional
meetings would probably be required for 18 to 24 months until the
appropriate assessments can be conducted at annual reviews and that
additional personnel would be needed. Another commenter agreed that
the changes related to the conduct of the triennial reevaluation may
reduce some paperwork, but noted that savings would not be realized
immediately for individual children because of the need for baseline
data. One commenter stated that it has taken the evaluation team one
hour just to decide whether there is a need to gather additional
information.
A few commenters provided specific information about the cost
and time involved to comply with some of the requirements that were
analyzed in the NPRM. For example, one commenter pointed out that it
would cost his district $18,000 to provide for substitute teachers
so regular education teachers could attend 900 IEP meetings lasting
one to two hours--or $20 per meeting. Another commenter stated that
the cost of providing substitute teachers would be an enormous
burden for school districts, noting that the average IEP meeting
takes 1.5 to 2 hours.
The Department also received a few comments on the cost of
providing education to children who have been suspended or expelled.
One commenter said that the projections do not take into account the
expense of providing homebound services, alternative placements or
access to the general curriculum. Another commenter agreed that the
estimates of $29-$70 were too low and pointed out that an out-of-
district day placement in Vermont runs about $20,000-$25,000 per
school year.
All of these comments were considered in conducting the analysis
of the benefits and costs of the final regulations. All of the
Department's estimates and the assumptions on which they are based
are described below.
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
Assistance to States for the Education of Children with Disabilities
regulations. In conducting this analysis, the Department examined
the extent to which changes made by the IDEA Amendments of 1997
added to or reduced the costs for school districts and others in
relation to the costs of implementing the IDEA prior to the
enactment of the IDEA Amendments of 1997. Based on this analysis,
the Secretary has concluded that the statutory changes included in
this regulation will not, on net, 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
Section 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 this statutory
change is a clarification of, 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.
The analysis of the impact of this requirement 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 (for example, in
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, it is estimated that about one to two percent of the
children in any age cohort will be taking alternate assessments.
Based on this information, it is estimated 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, about 200,000 to 700,000 will be children
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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 cost impact of this
statutory change is not likely to be significant, and will be
justified by the benefits of including all children in
accountability systems.
Incidental Benefits
The change made by section 613(a)(4) of the Individuals with
Disabilities Education Act (IDEA), incorporated in 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
4.4 million children will spend part of their day in a regular
classroom this school year. States reported employing about 404,000
teachers and related services personnel in total for school year
1995-96. The statutory change will eliminate unnecessary paperwork
for those special education personnel who have been working in the
regular classroom and documenting their allocation of time, and will
encourage the provision of special education services in the regular
classroom--a change that will benefit children with disabilities.
Individualized Education Programs
The final 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 on the IEP team), it has been
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 statutory changes that are incorporated in Sec. 300.346 do not
impose 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 statutory changes that are incorporated
in Sec. 300.347 relating to the general curriculum should not be
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 district-wide assessment, to include a statement regarding why
the assessment is not appropriate and how the child will be
assessed. This statutory requirement, which is incorporated in
Sec. 300.347(a)(5), will require some additional information to be
included in the IEPs for some children, but will not impose a
significant burden on schools. Each year an estimated 1.6 to 3.2
million children with disabilities are in grades in which schools
are administering State or district-wide assessments. Prior to the
enactment of the IDEA Amendments of 1997, Federal law required the
participation of children with disabilities in general assessments
with accommodations, as needed. Data indicate that about 50 percent
of children with disabilities have been participating in State and
local assessments. Many of these children are receiving needed
modifications and their IEPs currently include information about
those modifications. The requirement for statements in the IEP about
how children will be assessed will affect IEPs for children who
cannot participate in the general assessments and who are entitled
to participate in alternate assessments (estimated to be 200,000 to
700,000 children, beginning in school year 2000-2001).
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. This change potentially reduces the burden in preparing
IEPs for 6 million children each year.
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) and (a)(3) and
Sec. 300.346(d) of the final regulations, 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, while acknowledging that a regular education
teacher participates in developing, reviewing, and revising the
child's IEP ``to the extent appropriate.''
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 extent of the regular education teacher's
participation in them, 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 1994-1995 indicates that
about 3.9 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, some proportion of
these children are children for whom participation in regular
classrooms is a possibility, therefore requiring the participation
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, it is estimated that the
participation of a regular education teacher may be required in an
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additional 3.9 to 5.3 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, these costs will be more than justified by the
benefits to be realized by teachers, 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 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 the IDEA Amendments of 1997. However, in four Federal circuits,
the courts have concluded that, without the statutory change, 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 19 States affected by these court decisions. The
States are: Arkansas, Colorado, Connecticut, Iowa, Kansas,
Louisiana, Minnesota, Mississippi, Missouri, New Mexico, Nebraska,
New York, North Dakota, Oklahoma, South Dakota, 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 in
these States would have been required to serve, but for this change.
Using private school enrollment data for school year 1995-1996 and
projected growth rates, it is estimated that approximately 1.5
million students will be enrolled in private schools in these 19
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 80,000 and
120,000 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--$7,184 per child for school year 1998-1999--the costs
of providing FAPE to these children would be significant.
Under the statutory change, LEAs schools would still be required
to use a portion of the Federal funds provided under Part B of IDEA
to provide services to parentally-placed children--an amount
proportionate to the percentage of the total population of children
with disabilities who are parentally-placed--and to carry out
required child find and evaluation activities. Therefore, in
estimating the impact of this statutory change, one needs to
subtract the cost of these public school obligations from the total
projected savings. One would also need to take into account the fact
that some of the costs that would have been covered by the school
districts will simply shift to other sources such as the private
schools or the families of the children. However, even if one
discounts the amount of projected savings to the public sector by 50
percent to take into possible cost-shifting, the total net savings
attributable to the change in the law for these 19 States is
expected to be very significant.
Mediation
Section 300.506 reflects the new statutory provisions in section
615(e) of 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. IDEA 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 6,000 requests for
due process hearings during this school year. This projection
probably overstates the number of complaints because it does not
take into account the effect of the 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 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 the 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 number of
mediations is expected 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
changes made by the IDEA Amendments of 1997 are expected to
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 $1000, while a due process hearing
can cost tens of thousands of dollars. Based on the experience that
many different States have had with mediation, it is estimated 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 final regulations (Secs. 300.121, 300.122, 300.520, and
300.521) incorporate a number of significant changes to 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 Sec. 300.520(a)(2) would give
school officials the authority to remove children who engaged in
misconduct involving weapons or illegal drugs. 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 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 benefits of this authority
appear 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 Sec. 300.520(b) will require
school officials to
[[Page 12659]]
convene the IEP team in certain cases in which removal is
contemplated to develop an assessment plan and behavioral
interventions (or that the IEP team members review the child's
behavioral intervention plan if there is one). The impact of this
requirement is discussed below as part of the discussion of non-
statutory changes.
The requirement in section 612(a)(1)(A), incorporated in
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,
it is estimated that approximately 60,000 students with disabilities
aged 6 through 21 will be suspended during this school year in the
affected States. 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 with disabilities who are suspended (no more
than about 15 percent) receive suspensions of greater than 10 days
at a time and a much smaller number of students are expelled.
Little 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 average cost per day of providing
services in an alternative setting probably would be no less than
the average daily total costs of serving children with disabilities,
which is about $75 per day. Although costs will vary considerably
depending on the needs of the individual student and the type of
alternative setting, costs are likely to be higher on average
because districts are unlikely to be able to achieve the same
economies of scale in providing services to small numbers of
children in alternative settings as they do in serving children
generally.
While this statutory change will have a cost impact on the
States in the 4th and 7th Circuits, 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 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. No information is available on the number of
prisoners with disabilities who were not previously identified.
Triennial Evaluation
The previously existing regulations required a school district
to conduct an evaluation of each child served under 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 IDEA, incorporated in
Sec. 300.533, allows the evaluation team to dispense with additional
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, it is estimated
that approximately 1.5 million children will be eligible for
triennial evaluations in school year 1998-1999 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 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, it is assumed 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.
It is estimated that the elimination of unnecessary testing could
reduce the opportunity costs for the personnel involved in
conducting the triennial evaluation 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, it is assumed
that a triennial evaluation would require the participation of
several professionals for several hours and cost as much as $1000.
These savings would be somewhat mitigated by the increased costs
associated with the new statutory requirement to obtain parental
consent before conducting a reevaluation. Under the final
regulations, parental consent would be required if a test is
conducted as part of a reevaluation, for example, or when any
assessment instrument is administered as part of a reevaluation.
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 Provisions
The following is an analysis of the benefits and costs of the
nonstatutory final regulatory provisions that includes consideration
of the special effects these changes may have for small entities.
The final regulations primarily affect State and local
educational agencies, which are responsible for carrying out the
requirements of Part B of IDEA as a condition of receiving Federal
financial assistance under IDEA. 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 regulations most directly affect local school districts. The
analysis uses 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 rule. Little data are available that would permit a
separate analysis of how the changes affect small districts in
particular.
This analysis assumes that the effect of the final regulations
on small entities would be roughly proportional to the number of
children with disabilities served by those districts.
[[Page 12660]]
For school year 1998-1999, we estimate that approximately 47
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 1993-1994 and 1998-1999, the
Secretary estimates that approximately 1.18 million children are
enrolled in small districts. Applying the NCES estimate of 12
percent, we estimate that these districts serve approximately
140,000 children with disabilities of the 6 million children with
disabilities served nationwide.
There are many provisions in the final regulations that are
expected to result in economic impacts--both positive and negative.
This analysis estimates the impact of those non-statutory provisions
that were not required by changes that were made in the statute by
the IDEA Amendments of 1997. In conducting this analysis, the
Department estimated the additional costs or savings for school
district attributable to these provisions in relation to the costs
of implementing the statute, as amended by the IDEA Amendments of
1997.
The following is a summary of the estimated economic and non-
economic impact of the key changes in this final regulation:
Section 300.2--Applicability to public agencies--The regulations
add charter schools to the list of entities to which the regulations
apply. Language is also added in paragraph (b)(2) regarding the
applicability of the regulations to each public agency that has
direct or delegated authority to provide special education and
related services in a State receiving Part B funds, regardless of
that agency's receipt of Part B funds. Neither change imposes any
additional burden; both were included for clarity.
Section 300.7--Child with a disability--The final regulations
add a new paragraph (a)(2) to clarify that if a child has one of the
disabilities listed in paragraph (a), but only needs a related
service and not special education, the child is not a ``child with a
disability'' under Part B, unless the service is considered special
education under State standards. This change is not likely to affect
the number of children eligible for services under this part
substantially because this clarification reflects a longstanding
interpretation of the Department.
Section 300.7(c)(1)--Autism--The final regulations amend the
definition of ``autism'' to clarify that if a child manifests
characteristics of this disability category after age 3, the child
could be diagnosed as having ``autism'' if the other criteria are
satisfied. This clarification does not impose any additional burden
on LEAs.
Section 300.7(c)(9)--Attention deficit disorder--The final
regulations amend the definition of ``other health impairment'' to
add ADD/ADHD to the list of conditions that could render a child
eligible for services under this part. The language relating to
other health impairments is also modified to clarify that limited
strength, vitality or alertness includes a child's heightened
alertness to environmental stimuli that results in limited alertness
with respect to the educational environment. This change will not
increase costs for LEAs because it reflects the Department's
longstanding policy interpretation regarding the eligibility of
children with ADD/ADHD.
Section 300.8--Definition of day--The final regulations add
definitions of ``day,'' ``business day,'' and ``school day,'' terms
that are used in the statute. Including these definitions will
reduce confusion about the meaning of these terms and will not
impose costs. The definition of ``day'' represents the Department's
longstanding interpretation of that term. In defining ``business
day,'' the Department used a commonly understood measure of time so
that both parents and school officials could easily understand
timelines established in the regulations.
Section 300.10--Definition of educational service agency--The
final regulations clarify that the term ``educational service
agency'' includes agencies that meet the definition of
``intermediate educational units'' under prior law. This change does
not impose any costs on States.
Section 300.18--Charter schools as LEAs--The final regulations
amend the definition of an ``LEA'' to include public charter schools
established as LEAs under State law. This change, which adds
clarity, does not impose any costs.
Section 300.19--Native language--The final regulations expand
the definition of ``native language'' to clarify that in all direct
contact with the child, communication must be in the language
normally used by the child and not the parents if there is a
difference between the two, and that 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. This
clarification does not impose any additional costs for LEAs beyond
what Federal law would already require.
Section 300.20--Foster parents--The final regulations clarify
that foster parents may act as parents unless State law prohibits
such practice. This provision does not impose any costs. The
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, 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 could
appropriately be represented by their foster parents.
Section 300.22--Definition of public agency--The final
regulations add public charter schools to the list of public
agencies. This change does not impose any additional costs on States
as Federal law already requires States to be ultimately responsible
for ensuring FAPE for all children with disabilities in public
schools in the State.
Section 300.24--Related services--The final regulations modify
the definition of occupational therapy to make clear that it
encompasses services provided by a qualified occupational
therapist--a clarification that does not impose any additional
costs. The final regulations revise the definition of parent
counseling and training to include helping parents to acquire the
necessary skills that will allow them to support the implementation
of their child's IEP or IFSP.
Section 300.26(b)(3)--Definition of ``specially-designed
instruction''--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 300.26--Travel training--The final regulations amend the
definition of ``special education'' to include a reference to travel
training in paragraph (a)(2) and a definition of travel training in
paragraph (b)(4)--clarifications that do not impose any additional
costs.
Section 300.121--Free appropriate public education--The final
regulations add language to clarify that the responsibility to
provide FAPE beginning no later than a child's third birthday means
that an IEP or IFSP must be in effect by that date, and that a child
turning three during the summer must receive services if the IEP
team determines that the child needs extended school year services.
This language, which represents the Department's longstanding
interpretation of the statute, does not impose any additional burden
on LEAs. The final regulations also include language in paragraph
(e) to clarify that the group determining a child's eligibility must
make an individualized determination as to whether a child who is
progressing from grade to grade needs special education and related
services--another clarification that does not impose any additional
costs for LEAs.
Section 300.121--FAPE for Children suspended or expelled from
school--Section 300.121 incorporates 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.
Paragraph (d)(1) clarifies that a public agency need not provide
services to a child who has been suspended for fewer than 10 days in
a school year if services are not provided to nondisabled children.
Paragraph (d)(2) describes when and to what extent services must be
provided to children who have been removed from their current
educational placement for more than 10 school days in a given school
year. Paragraph (d)(2) provides that the public agency must provide
services to the extent necessary to enable the child to
appropriately progress in the general curriculum and advance toward
achieving the goals in the child's IEP if the suspension is for 10
school days or less or is for behavior that is not a manifestation
of the child's disability. In the case of suspensions of 10 days or
fewer, school personnel, in consultation with the special education
teacher, determine if, and to what extent services must be provided
to a child who has been suspended for more than 10 days in a
[[Page 12661]]
given school year. In the case of suspensions of more than 10 days,
this determination would be made by the IEP team. Paragraph (d)(2)
also refers to the statutory standard for services for children
removed for misconduct involving weapons, drugs, and substantial
likelihood of injury.
In determining whether and how to regulate on this issue, the
Department considered the impact of various alternatives on small
and large school districts and children with disabilities and their
families, especially the adverse educational impact on a child who
has been suspended for more than a few days and on more than one
occasion. The final regulations strike an appropriate balance
between the educational needs of students and the burden on schools.
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, but
required to consider the educational impact of suspensions on
children with chronic or more serious behavioral problems who are
repeatedly excluded from school.
The cost of this regulation depends on how the statutory
requirement to provide services to children who have been suspended
or expelled is interpreted. If the statute is read to require
schools to provide services to all children who are suspended for
one or more school days, this regulation would result in substantial
savings for school districts. If the statute is read to give schools
the flexibility 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, this regulation would impose some additional costs.
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 IDEA, it is estimated that approximately 300,000 children
with disabilities will be suspended for at least one school day during
this 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 would be substantial. Limiting
the requirement to children who have been suspended for more than 10
days in the school year would reduce costs substantially. Based on data
from a few selected States, it appears that no more than about 45,000
of these 300,000 children with disabilities will be suspended for more
than 10 days in a school year. Of these, an estimated 15,000 are
expected to be suspended at least once for more than 10 consecutive
days.
Section 300.122(a)(3)--Exception to right to FAPE (Graduation)--
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. The final
regulations further clarify that graduation constitutes a change in
placement, requiring written prior notice. Given the importance of a
regular high school diploma for a student's post-school experiences,
including work and further education, making it clear that the
expectation for children with disabilities is the same as for
nondisabled children provides a significant benefit to children with
disabilities. The impact of this change, 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 if States are
required to adopt a policy that clearly indicates that students who
exited with a certificate have the right to continued services.
Several State directors of special education indicated that
relatively few students who now can return, do so. The cost of
serving even 10,000 of the 25,000 students who exit each year with
certificates would be substantial.
Section 300.125--Child find--The final regulations clarify the
link between child find under Parts B and C. The final regulations
also add language clarifying that the State's child find
responsibilities extend to highly mobile children such as the
homeless and migrant children and children progressing from grade to
grade if they are suspected of having disabilities and in need of
special education. None of these changes impose any requirements
beyond what the statute has been interpreted to require.
Section 300.132(c)--LEA participation in transition planning
conference--The regulations require an LEA representative to
participate in planning conferences arranged by the lead agency for
children who are receiving services under Part C and may be eligible
for preschool services under Part B. This requirement does not
result in significant costs for school districts. Only about 100,000
children age out of early intervention services each year and in
many cases, LEA representatives have been participating in the
transition planning conferences for these children, although they
have not been required to do so.
Section 300.136--Personnel standards--The final regulations add
new paragraphs (b)(3) and (b)(4) to clarify that a State is not
required to establish any particular academic degree requirement for
entry-level employment of personnel in a particular profession or
discipline and that a State may modify its standard if it has only
one entry-level academic degree requirement. This language clarifies
the extent of flexibility afforded to States in meeting IDEA's
personnel standards requirement and therefore may reduce costs for
States and LEAs. The final regulations also add language in a new
paragraph (g)(2) that explains that the State option relating to
allowing LEAs to use the most qualified personnel available can be
invoked even if a State has reached its established date for a
specific profession--another clarification regarding the flexibility
that is available to States. Language is added in a new paragraph
(g)(3) that clarifies that a State that continues to experience
shortages must address them in its CSPD.
Section 300.139--Reporting on assessments--The final regulations
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 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 Sec. 300.138. There will be
no impact on school districts since this requirement applies to
reports that are prepared by the State educational agency.
Section 300.142--Medicaid reimbursement--The final regulations
add language to paragraph (b)(1) specifying that a noneducational
public agency may not disqualify an eligible service for Medicaid
reimbursement because that service is provided in a school context.
A new paragraph (b)(3) has been added regarding the responsibility
of State agencies and LEAs to provide all services described in a
child's IEP in a timely manner regardless of which agency pays for
the services. These clarifications of statutory requirements
relating to interagency coordination between educational and
noneducational agencies do not impose any additional costs.
Section 300.142(e)--Use of public insurance--Paragraph (e)
describes the circumstances under which a public agency may access a
parent's Medicaid or other public insurance to pay for required
services. Paragraph (e)(2) provides that a public agency may not
require parents to sign up for public insurance in order for their
child to receive FAPE. Paragraph (e)(2) further clarifies that a
public agency may not require parents to assume an out-of-pocket
expense and may not use a child's benefits if that use would
decrease available coverage, require the parents to pay for services
that would otherwise be covered by public insurance, increase
premiums or lead to discontinuation of insurance, or risk loss of
eligibility for home and community-based waivers. Under the statute,
public agencies are required to provide children with disabilities
with a free, appropriate public education. It has been the
Department's longstanding interpretation under IDEA and section 504
of the Rehabilitation Act that this means a public agency may not
require parents of children with disabilities to use private
insurance
[[Page 12662]]
proceeds to pay for services their children are entitled to receive
if the parents would incur a financial cost as a result. A financial
cost would include an out-of-pocket expense, a decrease in coverage,
or an increase in premiums. This interpretation is equally
applicable to the use of public insurance. Although these changes
appear to limit an LEA's access to public insurance to cover the
costs of FAPE, all of these changes are based on the statutory
requirement to provide FAPE and, therefore, do not impose additional
costs on LEAs beyond what the law would require. Moreover, these
clarifications would not affect the use of public insurance programs
such as Early Periodic Screening, Diagnosis and Testing that do not
impose any limits on coverage or require any co-payments.
Section 300.142(f) and (g)--Use of private insurance-- Paragraph
(f)(1) clarifies that public agencies may only access parents'
private insurance to pay for required services if the parents
consent to its use. As noted above, it has been the Department's
longstanding interpretation that a public agency may not require
parents to use private insurance proceeds to pay for services the
child is entitled to receive if the parents would incur a financial
cost as a result. Because it is reasonable to assume that use of
private insurance will result in a financial cost in almost all
cases, this provision, which would allow for the use of private
insurance with parental consent, would increase options available to
LEAs for accessing insurance--that is, in cases in which the parents
consent, whether or not a financial cost is incurred.
However, to ensure that use of parents' insurance proceeds is
voluntary and that parents do not experience unanticipated financial
consequences, the final regulations require that parents provide
informed consent. This consent must be obtained each time a public
agency attempts to access private insurance. This clarification
could have the effect of limiting access to the use of private
insurance but is consistent with the Department's longstanding
interpretation that such use must be voluntary.
A new paragraph (g) is added that clarifies that Part B funds
may be used for services covered by a parent's public or private
insurance and to cover the costs of accessing a parent's insurance
such as paying deductible or co-pay amounts. This clarification does
not impose any additional costs on LEAs.
Section 300.142(h)--Program income--This paragraph clarifies
that a public agency that receives proceeds from insurance for
services is not required to return those funds to the Department or
dedicate those funds to this program and that funds expended by a
public agency from reimbursement of Federal funds will not be
considered reimbursement for purposes of Secs. 300.154 and 300.231
of these regulations. This change increases flexibility for State
and local agencies in using the proceeds from insurance.
Section 300.142(i)--Construction--This paragraph makes it clear
that the IDEA regulations should not be read to alter the
requirements imposed by other laws on a State Medicaid agency or any
other agency administering a public insurance program. This
clarification does not impose any additional costs.
Section 300.148--Public participation--The final regulations add
language to clarify that if a policy or procedure has been through a
State-required public participation process that is comparable to
and consistent with the Federal requirements, the State would not
have to subject the policy or procedure to public comment again.
This should result in savings to States and would not increase
burden.
Section 300.152--Commingling--Language has been added to clarify
that the required assurance regarding commingling may be satisfied
by the use of a separate accounting system that includes an audit
trail of the expenditure of Part B funds and that separate bank
accounts are not required. This guidance merely incorporates the
Department's prior interpretation and does not add any burden for
States.
Section 300.156(b)--Annual description of Part B set-aside
funds--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 regulation is inconsequential because it implements
the Department's long-standing interpretation that a letter is
sufficient in this case.
Section 300.197--Compliance--Paragraph (c) requires SEAs to
consider adverse complaint decisions under the State complaint
procedures in meeting their responsibilities under Sec. 300.197 to
determine whether any LEA or State agency is failing to comply.
Consideration of these decisions is expected to impose minimal
burden on States that are appropriately meeting their
responsibilities under this section.
Section 300.231--Maintenance of effort (MOE)--The final
regulations make it clear that an LEA meets the maintenance of
effort requirement by spending at least the same total or average
per capita amount of State and local school funds for the education
of children with disabilities as in the prior year. This change
reduces the burden on LEAs of maintaining spending on special
education in those cases in which the State is willing to assume
increased responsibility for funding.
Section 300.232--Exception to maintenance of effort-- 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. Allowing LEAs to reduce
their expenditures by not replacing departing personnel would
violate congressional intent, as expressed in the House and Senate
Committee reports, and diminish special education services in those
districts. The final regulations also clarify that in those cases in
which an LEA is invoking the exception to the MOE requirement and
replacing personnel who have departed with lower salaried personnel,
that this must be done consistent with school board policies,
applicable collective bargaining agreements, and State law. This
clarification of the relationship does not impose any additional
burden beyond what local policies and law would otherwise impose.
Section 300.234--Schoolwide programs--The final regulations add
language clarifying that children with disabilities in schoolwide
projects must receive services in accordance with an IEP and must be
afforded all of the rights and services guaranteed to such children
under the IDEA. This clarification does not impose any additional
burden on LEAs.
Section 300.280--Notice for public participation--The final
regulations clarify what constitutes ``adequate'' notice in
paragraphs (b) and (c) and do not impose any additional burden.
Section 300.281--Public participation--Paragraph (a) further
clarifies the ``reasonableness'' standard implied in the statutory
requirement, while paragraph (b) reflects a statutory requirement in
the General Education Provisions Act. These changes do not impose
any additional costs.
Section 300.300--Child find--The final regulations clarify that
the State must ensure child find is fully implemented throughout the
State. This clarification does not impose any additional costs. The
final regulations also add language to clarify that the services and
placement needed by each child with a disability must be based on
the child's unique needs and not on the child's disability. This
clarification does not impose any costs on school districts.
Section 300.301(c)--Implementation of IEP--The final regulations
add language in a new paragraph (d) making it clear that there can
be no delay in implementing a child's IEP in any case in which the
payment source is being reconciled. This clarification does not
impose any additional costs.
Section 300.308--Assistive technology--The final regulations add
a provision that clarifies that a public agency must permit a child
to have access to a school-purchased assistive technology device at
home or in another setting if necessary to ensure FAPE. This change
does not impose any additional costs on school districts because it
implements a longstanding policy of the Department.
Section 300.309--Extended school year services--The final
regulations specify that States may not limit eligibility for
extended school year services based on disability and may not limit
types and amounts of services; and clarify that States may establish
standards such as likelihood of regression for determining
eligibility for ESY and that every child is not entitled to receive
ESY. These changes in the regulations impose no burden beyond what
is required by the statute because they reflect the Department's
longstanding policy interpretation of what is required to provide
FAPE.
Section 300.312--Charter schools--The final regulations add a
new provision that makes clear that children with disabilities who
attend charter schools and their parents retain all rights under
these regulations. The regulations further explain which entity in
the State is responsible for ensuring that the requirements of the
regulations are met. These clarifications do not impose any
additional burdens on States, schools
[[Page 12663]]
districts, or charter schools beyond what the statute would
otherwise require.
Section 300.313--Developmental delay (DD)--The final regulations
add a new provision describing the use of the developmental delay
designation. This section sets out the requirements for use of the
DD designation. It clarifies that States and LEAs may use the DD
designation for any child who has an identifiable disability,
provided all the child's identified needs are addressed, and
clarifies that States may adopt, if they wish, a common definition
of DD for Parts B and C. These changes clarify the flexibility the
statute affords States in using the DD designation and, therefore,
impose no costs.
Section 300.341--State standards--The final regulations clarify
that a child placed by a public agency must receive an education
that meets SEA and LEA standards. The cost impact of this change
depends largely on the extent to which non-special education
personnel in schools in which a public agency is placing children do
not meet SEA and LEA standards. Approximately four percent of the
six million children expected to be served under IDEA in school year
1998-1999 are expected to be placed in private schools. Because
these schools are typically schools for exceptional children,
virtually all of the professionals employed by these schools are
special education teachers and related services personnel, who must
meet SEA and LEA under the prior law, as implemented by the
regulations. Paragraph (b) clarifies that each public educational
agency is responsible for developing and implementing an IEP for
each child it serves or places or refers. This clarification imposes
no additional cost on public agencies since it represents a
longstanding interpretation of the statute.
Section 300.342(b)--Implementation of IEPs--The final
regulations add language requiring that each child's IEP be
accessible to the child's teachers and service providers and that
each teacher and provider be informed of specific responsibilities
related to implementing the IEP and of needed accommodations,
modifications, and supports for the child. This regulation is not
expected to impose any undue burden on schools. The regulations
clarify what is minimally required to promote effective
implementation of the IEP requirements and allow schools flexibility
in determining how to comply.
Section 300.342(c)--Use of IFSP--Paragraph (c) requires 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 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 costs of providing this form to
parents and obtaining written consent are most likely 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 for IEPs--Paragraph (d)
provides that all IEPs developed, reviewed, or revised on or after
July 1, 1998 must meet the requirements of IDEA, as implemented.
This language clarifies the statute and eliminates the burden that
would be associated with redoing all IEPs to conform with the new
requirements before July 1. The one-time cost of reconvening
millions of IEP teams before July 1 would have been substantial.
Section 300.344(c) and (d)--Participants in IEP meetings--The
final regulations add a new paragraph (c) clarifying that
determinations about the knowledge and expertise of other
individuals invited to be on the IEP team are made by the parent or
the public agency that invited them. This clarification reduces
potential burden by minimizing opportunities for disputes with
respect to whether the parent or public agency may invite another
individual to participate on the team. A new paragraph (d) has been
added to clarify that a public agency may designate another IEP team
member as the public agency representative of the IEP team.
Permitting an individual to perform dual functions will reduce the
cost of conducting IEP meetings for school districts.
Section 300.344(b)--Including the child in the IEP meeting--
Paragraph (b) requires 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, if appropriate, the
opportunity to participate in the IEP meeting. Therefore, in some
cases, 14- and 15-year-olds may be already participating. 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 300.345(b)--Participants in IEP meeting--The final
regulations clarify that the public agency must inform parents of
their right and that of the public agency to invite someone to the
IEP meeting who has knowledge or special expertise. This additional
requirement will impose minimal burden on schools because this
information could be included in other notices the schools are
already required to provide to parents.
Section 300.345(f)--Copy of the IEP--The final regulations
require the public agency to provide parents a copy of the IEP. The
cost of this change will depend on the extent to which parents are
currently receiving copies. Under current regulations, schools are
required to provide a copy to parents who request one. It is
reasonable to assume that schools routinely provide a copy to
parents who attend the IEP meeting. The cost of providing copies to
those parents who would not otherwise receive copies is not likely
to be substantial.
Section 300.346(a)(1)--Performance on assessments--The final
regulations require the IEP team to consider the child's performance
on general State and district-wide assessments, in considering the
child's initial or most recent evaluation. This clarification is not
likely to impose an additional costs because one can reasonably
assume that most IEP teams would consider this information as a
matter of course in determining the child's present levels of
performance.
Section 300.347--Transition services--The final regulations
delete the requirement from the existing regulations that requires a
justification for not providing particular transition services. This
change eliminates unnecessary paperwork.
Section 300.349--Private school placements--The final
regulations incorporate the previous regulatory requirement
regarding inviting a representative of the private school to a
child's IEP meeting. This requirement does not impose a significant
burden, while helping to ensure appropriate implementation of IEPs
for children placed in private schools.
Section 300.350--Accountability--The final regulations include a
statement regarding the responsibilities of public agencies and
teachers to make good faith efforts to ensure that a child achieves
the growth projected in the IEP, even though the IEP should not be
regarded as a performance contract. This clarification does not
impose any additional costs on agencies and is intended to promote
proper implementation of the IEP requirements.
Section 300.401--Children placed in private schools--The final
regulations specify that a child placed in a private school by a
public agency as a means of providing FAPE must receive an education
that meets the standards that apply to the SEA and LEA. For example,
all personnel who provide educational services must meet the
personnel standards that apply to SEA and LEA personnel providing
similar services. This change could increase the costs of these
placements to the extent this change required private schools to
increase their salaries in order to recruit regular education
personnel who meet SEA and LEA standards. However, the costs imposed
by this change are expected to be minimal. Less than two percent of
the six million children served under Part B are placed by public
agencies in private schools. These schools are typically special
schools in which most of the education personnel are providing
special education and related services. These personnel have been
required to meet SEA and LEA standards under prior law.
Section 300.403--Reimbursement for private placements--The final
regulations include language in paragraph (c) that makes it clear
that a private placement must be appropriate to be eligible for
reimbursement, but does not need to meet State standards. This
clarification, which is based on Supreme Court decisions regarding
the basic standard for reimbursement, does not impose any additional
costs on State or local agencies.
Section 300.451--Consultation on child find--The final
regulations add a new
[[Page 12664]]
paragraph (b) to require public agencies to consult with
representatives of parentally-placed private school students on how
to conduct child find. Paragraph (a) clarifies that the child find
activities for parentally-placed children must be comparable to
child find activities for children with disabilities in public
schools. The consultation requirement may impose an additional
burden but is expected to better enable school districts to carry
out this mandatory function. The requirement for comparability does
not impose any additional burden, but clarifies the intent of the
statute, which does not distinguish between child find activities
for children enrolled in public schools and those conducted for
children in private schools.
Section 300.452--Services plan--A paragraph has been added that
clarifies that a services plan must be implemented for each
parentally-placed private child who is receiving services under Part
B. This clarification does not impose any additional burden.
Section 300.453--Expenditures on child find in private schools--
A new paragraph (b) requires States to conduct a child count of
private school children with disabilities and consult with
representatives of private school children in deciding how to
conduct that count. This count is necessary to enable States to
determine how much they are required to spend on providing special
education and related services to this population. A new paragraph
(c) clarifies that the costs of child find for private school
children may not be considered in determining whether the LEA met
the requirement for proportionate expenditures on parentally-placed
children. This provision does not impose any additional cost on
school districts because it has been the Department's longstanding
interpretation that child find includes the identification of
children in private schools and that the cost of child find for
private school children may not be considered in determining whether
the LEA has met the requirements to serve children in private
schools. Paragraph (d), which clarifies that States and LEAs are not
prohibited from spending additional funds on providing special
education and related services to parentally-placed children beyond
what would be required, does not impose any additional costs.
Paragraph (b) requires the LEA to conduct a child count of children
with disabilities in private schools on the same day in which the
overall count is conducted, to consult with private school
representatives on conducting that annual count, and to use that
count to determine required expenditures. Although the requirement
to conduct the child count on a date certain limits LEA flexibility
and the required consultation imposes a burden, both requirements
help ensure that the child count accurately reflects the size of the
private school population.
Section 300.454--Services to children in private schools--The
final regulations clarify that no private school child has an
individual right to receive any of the services the child would
receive if enrolled in a public school. This section further
provides that each LEA shall consult with representatives of private
school children in determining which children will receive services,
what services will be provided, how and where services would be
provided, and how they would be evaluated. The regulations make it
clear that the representatives must have a genuine opportunity to
express their views and that the consultation must be before the LEA
makes its final decisions. The regulations also require the LEA to
conduct meetings to develop a services plan for each private school
child and to ensure the participation of a representative of the
child's private school at the meeting. These regulations help ensure
effective implementation of the provisions relating to serving
parentally-placed children and impose minimal burden on school
districts.
Section 300.455--Services to children in private schools--The
final regulations clarify that services provided private school
children must be provided by personnel meeting SEA standards; that
children in private schools may receive different amounts of
services than children in public schools; and that there is no
individual entitlement to services; each child to be provided
services must have a services plan. These changes do not impose any
additional costs on school districts; indeed they reflect the
Department's longstanding interpretation of the provisions relating
to serving parentally-placed children.
Section 300.456--Treatment of transportation--Consistent with
the Department's longstanding interpretation, the final regulations
state that transportation must be provided to private school
children if necessary to enable them to benefit from the services
that are offered. The regulations also clarify that the cost of
providing the transportation may be included in calculating whether
the LEA has met its financial obligations. The final regulations
further clarify that the LEA is not required to provide
transportation between the child's home and the private school.
These clarifications could reduce the potential cost for school
districts of complying with the requirement for proportionate
expenditures.
Section 300.457--Complaints of parentally-placed children--The
final regulations make it clear that due process procedures do not
apply to parentally-placed children. This clarification will reduce
costs to the extent that LEAs have allowed parents to use the due
process procedures to bring complaints relating to parentally-placed
children. This section also clarifies that due process procedures do
apply to child find. This change will increase costs to the extent
that parents were unaware of their ability to bring complaints about
child find and now do so.
Section 300.500(b)(1)(iii)--Parental consent--The final
regulations add language to clarify that a revocation of consent
does not have retroactive effect if the action consented to has
already occurred. This change protects LEAs from complaints
regarding services provided in reliance on parental consent that was
subsequently revoked. It does not impose any costs on LEAs.
Section 300.501(b)--Parental access to meetings--Paragraph (b)
of Sec. 300.501 defines when and how to provide notice to parents of
meetings in which they are entitled to participate. It further
limits what is meant by the term ``meeting.'' These 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 paragraph (b)(2) is designed to reduce
unnecessary burden by clarifying what constitutes a ``meeting.''
Section 300.501(c)--Placement meetings--Paragraph (c) of
Sec. 300.501 specifies that the procedures to be used 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 impact of this regulation will be
minimal. In those cases in which placement meetings are conducted
separately from the IEP meetings, 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--Independent educational evaluation--Paragraph
(a) provides that on request for an independent education evaluation
(IEE) parents are provided with information about where an IEE may
be obtained and the agency criteria applicable to IEEs, criteria
that must be consistent with the definition of an IEE. Paragraph (b)
makes it clear that if a parent requests an 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 final
regulations also provide that a public agency may request an
explanation from the parents regarding their concerns when a parent
requests an IEE at public expense, but such an explanation may not
be required and the public agency may not delay providing the IEE,
or initiating a due process hearing. These provisions requiring the
agency to provide information to the parents and take action do not
result in significant additional costs because if the agency did not
take action, parents would be free to request due process to compel
action. It is important for parents to be informed about the
relevant agency criteria for an IEE since the parent has a right to
an IEE at public expense and the IEE must meet agency criteria to be
considered by the public agency in determining eligibility.
Paragraph (e) provides that a public agency may not impose
conditions or timelines related to obtaining an independent
evaluation. 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 300.504(b)(14)--Notice to parents regarding complaint
procedures--The final regulations require that the required
[[Page 12665]]
procedural safeguards notice to parents include information about
how to file a complaint under State complaint procedures. Because
districts are already required to provide this notice to parents,
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 aware 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)(3)--Parental consent for reevaluation--
Paragraph (a)(3) clarifies that the new statutory right of parents
to consent to a reevaluation of their child does not require
parental consent prior to the review of existing data or
administering a test or other evaluation procedure that is given to
all children (unless all parents must consent). As a matter of good
practice, school personnel should be engaged in reviewing
information about the child's performance on an on-going basis.
Requiring parental consent for this activity would have imposed a
significant burden on school districts with little discernable
benefit to the children served under these regulations.
Paragraph (c)(2) uses the procedures that were in the prior
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 change 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, any burden imposed
by the proposed recordkeeping requirements is justified by the
benefits of securing parental consent to the reevaluation.
Section 300.506--Impartial mediation--Paragraph (b)(2) specifies
that if the mediator is not selected from the list of mediators on a
random basis, such as rotation, both parties must be involved in
selecting the mediator and agree with the selection of the mediator.
Paragraph (c) interprets the statutory requirement that mediation be
conducted by an impartial mediator to mean that a mediator may not
be an employee of any LEA or a State agency that is providing direct
services to the child and must not have a personal or professional
conflict of interest. However, a person will not be considered an
employee merely for being paid to serve as a mediator. Since
participation in mediation is voluntary, it must be viewed as an
attractive alternative to both public agencies and parents. Both
parties must trust the process and the first test of that is the
selection of the mediator. It is unlikely that parents would 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.
Providing for impartiality should help promote the use of mediation
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 the significant benefits to
children, families, and school districts of expeditiously resolving
disagreements without resort to litigation, the benefits of this
change easily justify any cost or inconvenience to States.
Section 300.506(d)(2)--Failure to participate in meeting--
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 it is 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--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 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 300.510(b)(2)(vi)--Access to findings and decisions--The
final regulations give parents the option of selecting an electronic
or written copy of the findings and decisions in the administrative
appeal of a due process decision. This is consistent with the
statutory right of the parents to a written or electronic copy of
the decision and findings in the due process hearing. It is
important to ensure that parents are provided the decisions and
findings in a way that is most useful to them. The cost of
implementing this requirement is expected to be negligible.
Section 300.513(b)--Attorneys' fees--Paragraph (b) provides that
funds provided under Part B of IDEA could not be used to pay
attorneys' fees or costs of a party related to an action or
proceeding under section 615 of IDEA. This regulation 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 IDEA 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. This regulation is
not expected 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
ten percent of special education expenditures.
Section 300.514(c)--Hearing officer decisions--The final
regulations clarify that if a State 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. This
regulation is not expected to have a significant cost impact because
it is based on the Supreme Court's language in Burlington School
Committee v. Department of Education, and the decisions of appellate
courts in such circuits as the 3rd and 9th. If paragraph (c) were
not included in the regulation, in many cases, parents would be
expected to be able to successfully argue, as they have in the past,
that the hearing officer's decision to change the placement of a
child be implemented. The cost impact of this regulation in other
circuits and cases in which the placement change would not have
occurred is 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 benefits to the child of securing an
appropriate placement justify any potential increase in costs or
other burdens to the school district.
Section 300.519--Change in placement--The final regulations
define a change in placement in the context of disciplinary removals
as a removal for more than 10 consecutive school days or a series of
removals that constitute a pattern because they cumulate to more
than 10 school days in a school year and, because of such factors as
the length of each removal, the total amount of time the child is
removed, and the proximity of the removals to one another. This
change does not impose any additional costs. It is consistent with
longstanding interpretations of the law.
Section 300.520(a)--Authority of School Personnel--Paragraph (a)
clarifies that school personnel may remove a child with a disability
for school code violations for up to 10 days at a time more than
once during a school year, as long as such removals do not
constitute a change in placement. This clarification does not result
in any additional costs or savings for school districts because it
is consistent with the Department's longstanding interpretation of
the law and the statute, as amended.
Section 300.520(b) and (c)--Behavioral interventions--Paragraph
(b) of this section makes it clear that if a child is removed from
his or her current placement for 10 schools days or fewer in a given
year, the school is not required to convene the IEP team to develop
an assessment plan for the child. Paragraph (b) further provides
that a school would be required to do so if the child were suspended
for more than 10 days in a given school year. Paragraph (b)
specifies 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 clarifies
that, if the child does not have a behavior intervention plan, the
purpose of the meeting is to develop an assessment plan. After
completing the assessments specified in the plan, the team must meet
to develop appropriate behavioral interventions to address that
behavior. Because the statute
[[Page 12666]]
could be read to require that the IEP team be convened for this
purpose the first time a child is suspended in a given year, the
requirement in the final regulations would significantly reduce the
burden on school districts.
The business day alternative would further minimize the burden
on school districts and would not have a significant impact on
children with disabilities, in light of other protections for
children.
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 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 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. At the same time, the
benefits of requiring a plan for a child who has already been
suspended for more than 10 days justify the costs given the benefits
of early intervention to both students and schools.
The final regulations further provide that in the case of a
subsequent suspension of less than 10 days that does not constitute
a change in placement for a child who has a behavioral intervention
plan, a meeting would not be required to review the behavioral
intervention plan unless one or more team members believe that the
child's IEP or its implementation need modification. Since the
statute could be read to require that the IEP team meet to review
the child's plan each time the child is suspended, this language
further reduces the cost to school districts.
Section 300.521--Due process hearing for removal--The final
regulations specify that a hearing officer is to make the
determination authorized by section 615(k)(2) of 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.
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 cost impact of this regulation on school districts will be
limited because in cases in which school districts and parents agree
about the proposed removal of a dangerous child, no hearing is
necessary. In those few cases in which there is disagreement, the
benefits of conducting a due process hearing justify the costs.
Section 300.523--Manifestation determination--Paragraph (a)
makes it clear that a school is required to conduct a manifestation
review only when the removal constitutes a change in placement.
As was the case in considering section 300.520(c), the
Department considered the potential benefits to the child and impact
on districts of convening the IEP team.
The conclusion was 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 district is proposing a suspension of
more than 10 days at a time or a suspension that constitutes a
pattern of exclusion. The cost of convening the team to conduct a
manifestation review outweigh the potential benefits to a child
being suspended for a few days, particularly because the statute
clearly allows the school a period of ten days after the misconduct
occurs to convene the team for purposes of conducting the
manifestation determination. In the case of short term suspensions,
the team would often be meeting after the child had already returned
to school.
The primary purpose of this review is to ensure that a child
will not be punished for behavior that is related to his or her
disability. The team is required to consider, for example, 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 is of little
use after the child has returned to school. A review would have
limited applicability to future actions. Even in those cases in
which the child engaged in identical misconduct, one's assessment of
the relationship between the child's behavior and disability could
change. Moreover, the statute clearly contemplates an individualized
assessment of the conduct at issue. Once a child has been suspended
for more than 10 days in a given year, the team will already be
considering the need for changes in the child's behavior
intervention plan, if the child has one, or will be meeting to
develop one, if the child does not. Requiring an additional meeting
to examine the relationship between the child's behavior and
disability is unlikely to produce additional information that would
inform the development of appropriate behavioral strategies.
Requiring the behavioral assessment to be conducted once a child has
been suspended for 10 days in a school day will help ensure that the
district responds appropriately to the child's behavior.
This regulation would significantly reduce costs for school
districts if the statute is read to require a manifestation review
every time a child is suspended.
Section 300.523(f)--Manifestation determination--The final
regulations clarify that if the team identifies deficiencies in the
child's IEP, its implementation, or placement, the agency must take
immediate steps to remedy the deficiencies. This clarification does
not impose any costs beyond what the statute would require.
Section 300.526--Placement in alternative setting--Language is
added to paragraph (c) to make clear that a school district may
request a hearing officer to extend a 45-day placement on the
grounds that returning a child to his or her regular placement would
be dangerous. This change, which increases the options available to
school districts for dealing with a child engaged in dangerous
behavior, does not impose any costs on school districts.
Section 300.527--Basis of knowledge--The final regulations make
a number of clarifying changes: Language is added to paragraph
(b)(2) to clarify that the behavior or performance must be in
relation to one of the disability categories. Paragraph (b)(4) has
been revised to require that expressions of concern about the child
be made to personnel who have responsibility for child find or
special education referrals. A new paragraph has been added to
clarify that if an agency acts and determines that the child is not
eligible, and provides proper notice to the parents, and there are
no additional bases of knowledge that were not considered, the
agency would not be held to have a basis of knowledge. These changes
reduce costs for LEAs by further specifying what is required for
determining that an LEA has a basis for knowledge that a child is a
child with a disability. By specifying, for example, that
expressions of concern be made to personnel responsible for child
find or special education referral eliminates the possible
interpretation that a school must provide services and other
protections to children who were the subject of conversation between
any two people in the school. Without these clarifications,
commenters have suggested that potentially all children could avail
themselves of IDEA protections.
Roughly three million nondisabled children are expected to be
the subject of disciplinary actions during this school year. Parents
are likely to raise this issue in the case of long-term suspensions
and expulsions in which identification as a child with a disability
ensures the non-cessation of educational services, among other
protections. An estimated 300,000 nondisabled children receive long-
term suspensions or expulsions in a given school year. Based on the
public comments on this section of the regulations, it would appear
that a basis for knowledge claim could be sustained in a significant
percentage of these cases. Assuming for purposes of this analysis
that it could be sustained in about 10 percent of cases, the costs
of providing services, for example, to those children during the
period in which they are excluded from school would be considerable
because only a minority of States currently provide services to
children without disabilities who have been disciplined. Therefore,
the savings resulting from these clarifications are considerable.
Section 300.528--Expedited due process hearings--The final
regulations specify that States establish a timeline for expedited
due process hearings that meets certain standards. These include:
ensuring written decisions are mailed to the parties in less than 45
days, with no extensions that result in a decision more than 45 days
from the request for the hearing, and providing for the same
timeline whether the hearing is requested by a public agency or
parent. Paragraph (b) further clarifies that the State
[[Page 12667]]
may alter other State-imposed procedural rules from those it uses
for other hearings. These clarifications provide States with maximum
flexibility in conducting these hearings while ensuring equitable
treatment for parents and public agencies. Requiring such hearings
within 45 days imposes minimal burden on States since 45 days
provides ample time--more time than proposed by many of the
commenters--and the requests for such hearings are not expected to
be great. Requests for expedited hearings will only be made in those
cases involving serious misconduct in which there is a disagreement
between the parents and public agency regarding action proposed by
the public agency.
Section 300.529--Transmittal of education records--The final
regulations clarify that a child's special education and
disciplinary records may only be transmitted to the extent that such
transmission is permitted under the Family Educational Rights and
Privacy Act (FERPA). This clarification, which restricts the extent
to which such records may be transmitted to certain agencies,
consistent with the requirements of FERPA, does not impose any
burden on school districts.
Section 300.532--Evaluation procedures--The final regulations
require that assessments of children with limited English
proficiency must be selected and administered to ensure that they
measure the extent to which a child has a disability and needs
special education, and do not instead measure the child's English
language skills. This change, which clarifies requirements under
both IDEA and Title VI, does not impose any additional burden. The
final regulations also add language requiring that 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, must be included in the evaluation
report. This change will impose a burden on school districts only to
the extent that the evaluation team does not currently include
information in its report on the extent to which an assessment
varied from standard conditions. Information about the
qualifications of the person administering the test and the method
of test administration is needed so that the team of qualified
professionals can evaluate the effects of variances in such areas on
the validity and reliability of the reported information. The final
regulations clarify that in evaluating a child all needs of the
child must be identified, including any commonly linked to a
disability other than the child's. This change does not impose any
additional burden on districts, but clarifies what is intended by
the term ``comprehensive'.
Section 300.533(b)--Review of existing data--The final
regulations make it clear that the group that is responsible for
reviewing existing data on the child as part of an initial
evaluation or a reevaluation need not meet to conduct this review.
This clarification reduces costs for school districts by eliminating
unnecessary meetings of this group.
Section 300.534(b)--Eligibility determination--Paragraph (b)
clarifies that children are not eligible if they need specialized
instruction because of limited English proficiency or lack of
instruction in reading or math, but do not need specialized
instruction because of a disability. This clarification does not
impose any costs on school districts, but reflects the statutory
intent.
Section 300.534(c)--Termination of eligibility--Paragraph (c)
clarifies that an evaluation is not required before the termination
of a student's eligibility under Part B due to graduation with a
regular high school diploma or aging out under State law. This
clarification reduces the costs for school districts by eliminating
the need to conduct evaluations for the 146,000 students who are
expected to exit high school in school year 1998-1999 by graduating
or aging out.
Section 300.535(a)(1)--Eligibility determination procedures--The
final regulations add parents to the variety of sources from which
the public agency will draw in interpreting evaluation data for the
purpose of determining if the child is a child with a disability.
This change imposes minimal burden while providing for meaningful
parental involvement, consistent with the requirements for including
parents in the team that determines eligibility.
Section 300.552(e)--Placement in regular classroom--The final
regulations provide that a child may not be denied placement in an
age-appropriate regular classroom solely because the child's
education requires modification to the general curriculum. This
change clarifies the requirement in the law that a child may only be
removed from the regular educational environment if education in the
regular class cannot be achieved satisfactorily with the use of
supplementary aids and services. Although this clarification may
result in an increase in the number of children served in regular
classes, it does not impose costs on school districts beyond what
the statute itself would require because of the longstanding
requirement to serve children in the least restrictive environment.
Section 300.562--Access to records--The final regulations make
clear that agencies must comply with requests for access to records
by parents prior to any meetings, but no more than 45 days after
request, consistent with FERPA. This provision minimizes burden on
LEAs by not imposing a shorter deadline than provided by FERPA,
except as necessary to provide access before an IEP meeting or
hearing. This provision helps ensure that parents have the ability
to adequately prepare for and participate in IEP meetings and due
process hearings, which are crucial to ensuring each child's right
to a free appropriate public education.
Section 300.571--Consent for disclosure of information--The
final regulations provide for an exception to the requirement for
parental consent for disclosure of education records, consistent
with the language in Sec. 300.529. This does not impose any costs on
school districts and resolves an apparent contradiction in the
regulations with respect to disclosure of education records to law
enforcement and juvenile justice agencies.
Section 300.574--Children's rights relating to records--The
final regulations clarify that the parents' rights under FERPA
transfer to the student at age 18. The regulations further provide
that if the rights of parents under Part B of IDEA are transferred
to the student at the age of majority, then the rights of parents
regarding education records also transfer. This clarification does
not impose any additional costs on school districts.
Section 300.581-300.587--Procedures for enforcement--The final
regulations clarify the types of notice and hearing that the
Department would provide before taking an enforcement action under
Part B of 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--The final regulations
describe 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 the IDEA Amendments of 1997.
This regulation does not impose any cost on local school districts.
The procedures will only affect a State requesting a waiver under
Part B.
Section 300.624--Capacity-building subgrants--The final
regulations make it clear that States can establish priorities in
awarding these subgrants. The language provides permissive authority
to be used at the discretion of each State, clarifying the intent of
the statutory change and imposing 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.
Section 300.652--Advisory panel functions--The final regulations
add language stating that the panel's responsibilities include
advising on the education of students with disabilities who have
been incarcerated in adult prisons. This additional burden will not
impose significant costs.
Section 300.653--Advisory panel procedures--The final
regulations include language in paragraph (d) to require panel
meetings to be announced long enough in advance to afford people a
reasonable opportunity to attend and require that agenda items be
announced in advance and that meetings be open. These changes impose
minimal burden while facilitating meaningful participation in the
meetings.
Sections 300.660(a) and 303.510(a)--Information about State
complaint procedures--The final regulations 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
[[Page 12668]]
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.
Section 300.660(b) and 303.510(b)--Remedies--The final
regulations require States in resolving complaints to address how to
remedy the failure to provide appropriate services, including
awarding of compensatory relief and corrective action. This
clarification does not impose any additional costs beyond those that
would be otherwise required by the statute.
Section 300.661(c) and 303.512(c)--Requirements for complaint
procedures--The final regulations add language that clarifies how
the State complaint process interacts with the due process hearing
process. The language clarifies that a State may set aside any part
of a complaint being addressed in a due process hearing; that the
due process hearing decision is binding; and that failure to
implement a due process decision must be addressed by the SEA. This
clarification is expected to reduce costs by reducing unnecessary
disputes about the relationship between the two processes.
Sections 300.661 and 303.512--Secretarial review--The final
regulations delete the provision providing for Secretarial review of
complaints filed under State complaint procedures. The effect of
this change on small (and large) districts would be inconsequential
because of the small number of requests for these reviews. This was
done 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 to 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 IDEA would be
achieved if the Department eliminated the Secretarial review process
and focused on improving State procedures for resolving complaints
and implementing IDEA programs. This change, and the changes in
Secs. 300.660(b), 300.503(b)(8), 303.510(b), and 303.403(b)(4) that
require greater public notice about the State complaint procedures,
would implement those recommendations.
Sections 300.662 and 303.511--State reviews--This change
relieves States of the requirement to review complaints about
violations that occurred more than three years before the complaint.
This 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 change 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.
Section 300.712--Allocations to LEAs--The final regulations
clarify how to calculate the base payments to LEAs under the
permanent formula in a case in which LEAs have been created,
combined, or otherwise reconfigured. Although recalculation itself
imposes some burden on the SEA, the regulations provide the SEA with
considerable flexibility in doing that recalculation. For example,
the SEA determines which LEAs have been affected by the creation,
combination, or reconfiguration and what child count data to use in
allocating the funds among the affected LEAs.
Language has also been added to the regulations that in
implementing the permanent formula States must apply, on a uniform
basis, the best data available to them. This clarification does not
impose any additional burden on States in allocating funds.
Section 300.753--Annual child count--The final regulations
clarify that the SEA may count parentally-placed private school
children if a public agency is providing special education or
related services that meet State standards to these children. This
clarification does not impose any burden on SEAs or LEAs while
helping to ensure a more equitable distribution of IDEA funds.
Attachment 3.--Disposition of NPRM Notes in Final Part 300 and 303
Regulations \1\
[Note: Attachment 3 will not be codified in the Code of Federal
Regulations]
------------------------------------------------------------------------
II. Disposition of notes
I. List of notes by section in NPRM in final regulations
------------------------------------------------------------------------
Subpart A
------------------------------------------------------------------------
300.1--Purposes:
Independent living.............. In discussion
under Sec. 300.1; and
in Appendix A (Re-
transition services).
300.2--Applicability to State, local, and
private agencies:
Requirements are binding on each Added to Reg as
public agency regardless of whether it Sec. 300.2(a)(2).
receives B funds.
Definitions Used in This Part
1. List of terms defined in specific 1. Moved to Index under
sections. ``Definitions.''
2. Abbreviations used.................... 2. Terms identified in
Reg text.
300.6--Assistive technology service:
Definitions of assistive Deleted.
technology device and service are
identical to Technology Act of 1988.
300.7--Child with a disability:
1. Autism characteristics after age 3 is 1. Added to Reg as Sec.
still Autism. 300.7(c)(1)(ii).
2. Developmental Delay--Explanation...... 2. Added to Reg at Sec.
300.7(b)(2).
3. Dev. Delay--H.Rpt statement on 3. In discussion under
importance of. Sec. 300.7(b).
4. Emotional disturbance (ED)--H.Rpt 4. In discussion under
statement. Sec. 300.7(c).
5. ADD/ADHD--Eligible under OHI or other 5. ``ADD/ADHD'' and
disability category if meet criteria ``limited alertness''
under Sec. 300.7(a). added to Sec.
300.7(c)(9).
300.12--General curriculum:
Term relates to content and not Added to Reg
setting. (IEP--Sec. 300.347(a)(1
)(i), (2)(i)). In
discussion of ``Gen.
Cur.''
300.15--IEP Team:
IEP team may also serve as In discussion
placement team. under Sec. 300.16.
300.17--LEA:
Charter school that meets def of Added to Reg as
``LEA'' is eligible for B-$; & must part of Sec. 300.312.
comply w/B if it receives B-$.
300.18--Native language:
(1) Sections where term is used. (1) Listed in
Index.
[[Page 12669]]
(2) Exceptions to definition........... (2) Added to Reg at
Sec. 300.19.
In discussion under
Sec. 300.19.
300.19--Parent:
``Parent'' includes a Added to Reg at
grandparent or stepparent, etc. Sec. 300.20(a)(3).
300.22--Related services:
1. All related services may not be 1. In discussion under
required. Sec. 300.24.
2. H. Rpt. on O/M services and travel 2. In discussion under
training. Sec. 300.24.
--Travel training added
as Sec.
300.26(a)(2)(ii) and
(b)(4).
3. Use of paraprofessionals if consistent 3. In discussion under
w/.136. Secs. 300.24; 300.136.
4. Transportation--same as nondisabled; 4. Added to Q-33 in
accommodations. Appendix A.
300.24--Special education:
A child must need special Added to Reg as
education to be eligible under Part B of Sec. 300.(7)(a)(2); In
the Act. discussion under Sec.
300.26.
300.27--Transition services:
May be special education or
related services..
List under Sec. 300.27(c) is not Added to Reg as
exhaustive. Sec. 300.29(b).
In discussion under Sec.
300.29.
------------------------------------------------------------------------
Subpart B
------------------------------------------------------------------------
300.121--Free appropriate public education:
1. FAPE obligation begins on 3rd birthday 1. Added to Reg as Sec.
300.121(c).
2. Re-child progressing from grade to 2. Added to Reg as Secs.
grade. 300.121(e),
300.125(a)(2)(ii), and
Sec. 300.300(d).
300.122--Exception to FAPE for certain ages:
1. FAPE and graduation................... 1. ``Prior notice'' added
to Reg as Sec.
300.122(a)(3)(iii).
--A new Sec.
300.534(c)(2) states
that evaluation is not
required for graduation
with a regular diploma.
2. H.Rpt. Re-students with disabilities 2. Added as Sec.
in adult prisons. 300.122(a)(2)(ii).
300.125--Child find:
1. Collection of data subject to 1. Added to Reg as Sec.
confidentiality. 300.125(e).
2. Services must be based on unique needs 2. Added to Reg as Sec.
300.300(a)(3).
3. Child find under Parts B and C........ 3. Added to Reg as Sec.
300.125(c).
4. Extend child find to highly mobile 4. Added to Reg as Sec.
children. 300.125(a)(2)(i).
300.127--Confidentiality of * * *
information:
Reference to FERPA.............. Deleted.
(Already covered under
300.560-300.576.)
300.130--Least restrictive environment:
H. Rpt. statement Re-continuum.. Added to Reg at
Sec. 300.130(a).
300.135--Comprehensive system of personnel
development:
H.Rpt--Disseminate information In discussion
on Ed research * * * States able to use under Sec. 300.135.
info--(a)(2) Re--SIP.
300.136--Personnel standards:
1. Regs require States to use own highest 1. Added to Reg as Sec.
requirements. Defs not limited to 300.136(b)(2).
traditional categories.
2. State may require * * * good faith Added to Reg as Sec.
effort * * * shortages. 300.136(g)(2).
3. If State only 1 entry-level degree, 3. Added to Reg as Sec.
modification of standard to ensure FAPE 300.136(b)(4).
won't violate (b)/(c).
300.138--Participation in assessments:
Only small no. children need In discussion
alternate assmts. under Sec. 300.138.
300.139--Reports relating to assessments:
Re aggregate data ((b)), PA may In discussion
also Rpt data other ways (e.g.,.. under Sec. 300.139.
trendline * * *).
300.142--Methods of ensuring services:
1. H.Rpt--Import. of ensuring services Re 1. Added to Reg at Sec.
E/non-ed agencies* * *Medicaid. 300.142(b)(1)(ii).
2. Intent of (e) = services @ no cost- 2. In discussion under
parents. Sec. 300.142.
3. Pub Agency can pay certain pvt insur 3. Added to Reg at Sec.
costs for parents. 300.142(g).
4. If PA receives $ from insurers to 4. Added to Reg at Sec.
return the $. 300.142(h)(2).
300.152--Prohibition against commingling:
Assurance is satisfied by sep Added to Reg as
accounting system.. Sec. 300.152(b).
300.185--Meeting the excess cost requirement:
LEA must spend certain minimum In discussion
amount * * * Excess costs = costs of under Sec. 300.185.
special ed that exceed minimum.
300.232--Exception to maintenance of effort:
H.Rpt--Voluntary departure Re-- Added to Reg as
personnel paid at/ near top--scale; Sec. 300.232(a)(2).
guidelines to invoke exception.
300.234--Schoolwide programs:
Although funds may be combined, Added to Reg at
disabled children must still receive Sec. 300.234(c).
services re-IEP.
200.241--Treatment of charter schools:
[[Page 12670]]
B-Regs that apply to pub schools In discussion
also apply to charter schools; H.Rpt-- under Sec. 300.241.
Expect full compliance.
------------------------------------------------------------------------
Subpart C
------------------------------------------------------------------------
300.300--Provision of FAPE:
1. FAPE Requirement applies to disabled 1. In discussion under
children in school and those with less Sec. 300.300.
severe disabilities.
2. State must ensure child find fully 2. Added to Reg at Sec.
implemented. 300.300(a)(2).
3. Why age range--child find is greater 3. In discussion under
than FAPE. Sec. 300.300.
300.302--Residential placement:
Requirement applies to In discussion
placements in St. schools. under Sec. 300.302.
300.303--Proper functioning of hearing aids:
Statement from H. Rpt. on 1978 In discussion
appropriation bill related to status of under Sec. 300.303.
hearing aids.
300.304--Full educational opportunity goal:
S.Rpt (1975) on arts--Brooklyn In discussion
Museum:. under Sec. 300.304.
300.305--Program options:
List not exhaustive............. In discussion
under Sec. 300.305.
300.307--Physical education:
H.Rpt (142)--Must assure PE In discussion
available to all HC. under Sec. 300.307.
300.309--Extended school year services:
1. LEA may not limit to particular 1. Added to Reg at Sec.
categories or duration. All disabled 300.309(a)(3).
children not entitled.
2. States may establish standards * * * 2. In discussion under
Factors may consider = likelihood of Sec. 300.309.
regression.
300.341--SEA Responsibility (Re--IEPs):
Section applies-all public Added to Reg as
agencies, including other State agencies. Sec. 300.341(b).
300.342--When IEPs must be in effect:
1. It is expected that IEPs will be 1. In discussion under
implemented immediately after the Sec. 300.342.
meeting (with exceptions).
2. Requirements--incarcerated youth apply 2. Deleted.
6-4-97.
3. IEP vs IFSP--written informed consent. 3. In discussion under
Sec. 300.342(c).
300.343--IEP meetings:
Offer of services within 60 In discussion
days--consent. under Sec. 300.343.
300.344--IEP Team:
Reg Ed teacher at IEP meeting = In discussion
one who works with the child; if more under Sec. 300.344
than one--designate.
300.345--Parent participation:
Parent notice Re--bring Added to Reg as
others..procedure used = agency Sec. 300.345(b).
discretion * * * But keep record of
efforts.
300.346--Development; review, & revision of
IEP:
1. Importance Re--Consideration of 1. In discussion under
special factors. Sec. 300.346.
2. Re--``Deaf Students Educational 2. In discussion under
Services'' (1992). Sec. 300.346.
3. IEP team and LEP students............. 3. In discussion under
Sec. 300.346.
300.347--Content of IEP:
1. Import of transition services for 1. In discussion under
students below 16. Sec. 300.347.
2. H.Rpt Re--import of general curriculum 2. In discussion under
Sec. 300.347.
3. H.Rpt--Gen Curriculum--length of IEP 3. In discussion under
vs adjustments. Sec. 300.347.
4. H.Rpt--Teaching methods not in IEP.... 4. In discussion under
Sec. 300.347.
5. Reports to parents on Annual Goals vs 5. In discussion under
Reg. Reports. Sec. 300.347.
6. H.Rpt--transition service needs vs 6. In discussion under
services. Sec. 300.347.
7. OK for transition-needs/services below 7. In discussion under
14 and 16. Sec. 300.347.
300.350--IEP--accountability:
Public agency must make good Added to Reg as
faith effort; parents have right to Sec. 300.350(b).
complain.
300.360--Use of LEA allocation for direct
services:
If LEA doesn't apply for Pt. B Added to Reg at
funds, SEA must use in LEA. Sec. 300.360(b).
------------------------------------------------------------------------
Subpart D
------------------------------------------------------------------------
300.453--Expenditures:
LEAs may provide services beyond Added to Reg at
those required. Sec. 300.453(d).
300.456--Location of services:
1. Zobrest--Re on-site services.......... 1. In discussion under
Sec. 300.456.
2. Transportation to from site * * * not 2. Added to Reg at Sec.
from home. 300.456(b)(1).
------------------------------------------------------------------------
Subpart E
------------------------------------------------------------------------
300.500--Gen. Resp. of public agencies;
definitions:
Parent consent, if revoked is Added to Reg at
not retroactive. Sec. 300.500(b)(1)(iii)
.
300.502--Independent educational evaluation:
1. Parent not required to specify areas 1. Added to Reg at Sec.
of disagreement. 300.501(b).
2. Pub agencies--should make info on IEEs 2. Added to Reg at Sec.
widely available; may not require parent- 300.502(a)(2).
evals meet all criteria.
[[Page 12671]]
300.505--Parental consent:
1. Pub. agency may use due process to 1. In discussion under
override refusal, unless doing so-- Sec. 300.503.
inconsistent w/St law.
2. PA must provide servs in any area not 2. In discussion under
in dispute; if nec--FAPE--use override; Sec. 300.503.
may recons proposal.
3. If parents refuse-reeval needed for 3. In discussion under
servs, & St law prevnts override-reeval, Sec. 300.503.
PA may cease servs.
300.506 Mediation:
1. H. Rep--If mediator not selected 1. Added to Reg at Sec.
randomly Pub. agency and parents both 300.506(b)(2)(ii).
must select.
2. H. Rep--Preserve parental access Rts-- 2. In discussion under
FERPA; confidentiality pledge. Sec. 300.506.
300.507--Impartial due process hearing;
parent notice; disclosure:
1. Determination of whether hearing 1. In discussion under
request is based on new info must be Sec. 300.507.
made by HO.
2. H. Rep. Re--Attorneys' fees; and the 2. In discussion under
value of the parent notice requirement. Sec. 300.507.
300.510--Finality of decision; appeal;
impartial review:
1. SEA may conduct review directly or 1. In discussion under
thru another agency; but remains Sec. 300.510.
response for final decision.
2. All parties have right to counsel; if 2. In discussion under
Rev Officer holds a hearing, other Sec. 300.510.
rights in 300.509 apply.
300.513--Attorneys' fees:
A State may enact a law In discussion
permitting HOs to award fees. under Sec. 300.513.
300.514--Child's status during proceedings:
Public agency may use normal In discussion
procedures for dealing with children who under Sec. 300.514.
are endangering themselves or others.
300.520--Authority of School personnel:
1. Removal for 10 days or less--not a chg 1. In discussion under
in placmt; a series of removals that Sec. 300.520.
total +10 days may be.
2. PA need not conduct review in (b), but 2. In discussion under
encouraged Ck if--serves in accord w/ Sec. 300.520.
IEP..or addressed.
300.523--Manifestation determination review:
1. H.Rpt--Ex of manifestation vs not * * 1. In discussion under
* But not intended-- base finding on Sec. 300.523.
tech violation-IEP.
2. If manifestation--LEA must correct any 2. Added to Reg at Sec.
deficiencies found. 300.523(f).
300.524--Determination that behavior not a
manifestation of disability:
During pendency--child remains In discussion
in current placmt or placmt under under Sec. 300.524.
300.526, whichever applies.
300.526--Placement during appeals:
An LEA may seek subsequent Added to Reg as
expedited hearings if child still Sec. 300.526(c)(4).
dangerous & issue not resolved.
300.532--Evaluation procedures:
1. Re LEP--accurate assmt of child's lang 1. In discussion under
proficency. Sec. 300.532.
2. If no one at sch Re-LEP, contact LEAs, 2. In discussion under
IHEs. Sec. 300.532.
3. If assmt not done under standard 3. Added to Reg as Sec.
conditions, include in eval Rpt. Info 300.532(a)(2).
needed by team.
300.533--Determination of needed evaluation
data:
Purpose of review by a group; In discussion
composition of team will vary depending under Sec. 300.533.
on nature or disability.
300.535--Procedures for determining
eligibility and placement:
All eval sources not required In discussion
for each child. under Sec. 300.535.
300.551--Continuum of alternative placements:
Home instruction usually only In discussion
for limited No. children (medically under Sec. 300.551.
fragile).
300.552--Placements:
1. Group in (a)(1) could also be IEP 1. In discussion under
team--if .344. Sec. 300.552.
2. Main rule in LRE = indiv decisions + 2. Added to Reg at Sec.
alternate placmts; applicability to 300.552.
preschool children.
3. If IEP team considers-provides for 3. In discussion under
behavioral interventions * * * many Sec. 300.552.
disruptive children-Reg cl.
300.553--Nonacademic settings:
Section taken from 504 Regs..... In discussion
under Sec. 300.553.
300.554--Children in public or private
institutions:
LRE provisions apply to Children In discussion
in public and private institutions. under Sec. 300.554.
300.573--Destruction of information:
Info may be kept forever unless In discussion
parents reject; (Why records are under Sec. 300.573.
important * * *).
300.574--Children's rights:
1. Under FERPA Regs, Rts transfer at age 1. Added to Reg at Sec.
18. 300.574(b).
2. If Rts transfer re-.517, Rts re Ed- 2. Added to Reg at Sec.
records also transfer; but public agency 300.574(c).
must give 615 notice to parents and
student.
300.587--Enforcement:
Other enforcement actions In discussion
include cease and desist order * * * and under Sec. 300.587.
a compliance agreement.
------------------------------------------------------------------------
[[Page 12672]]
Subpart F
------------------------------------------------------------------------
300.600--Responsibility for all educational
programs:
Provision = Congressional In discussion
desire--central point of contact. S.Rpt under Sec. 300.600.
(1975) * * * Options.
300.623--Amount required for subgrants to
LEAs':
Amt. required for subgrants will In discussion
vary--yr-to-yr. $ for subgrants 1 yr under Sec. 300.623.
become flow-thru in next.
300.624--State discretion in awarding
subgrants:
Purpose of subgrants to LEAs--to In discussion
provide $ SEA can direct Re needs--can't under Sec. 300.624.
address Re-formula-$.
300.650--Establishment of Advisory panels:
Panel must advise on students in Added to Reg at
Adult prisons. Sec. 300.652(b).
300.660--Adoption of State complaint
procedures:
SEA may award compensory damages Added to Reg at
Re-denial of FAPE. Sec. 300.660(b).
300.661--Minimum State complaint procedures:
1. If complaint also subject of a 1. Added to Reg at Sec.
hearing, must set aside any part 300.661(c)(1).
addressed-hearing; but resolve the rest.
2. If issue in complaint already decided 2. Added to Reg at Sec.
in a hearing (same parties), H-decision 300.661(c)(2).
= binding.
300.662--Filing a complaint:
SEA must resolve complaint, even Added to Reg at
if it is filed by indiv-organization in Sec. 300.662(a).
another State.
------------------------------------------------------------------------
Subpart G
------------------------------------------------------------------------
300.712--Allocations to LEAs:
Re-85%--use best data available; Added to Reg at
new data not needed-pvt schs. Re-15%-- Sec. 300.712.
use best (Examples).
300.750--Annual report of children served-
report requirement:
Report--solely for allocation In discussion
purposes; count may differ from children under Sec. 300.750.
who receive FAPE.
300.753--Annual report of children served-
criteria for counting children:
1. State may count children in Head Start 1. Covered by reg. note
if Sp Ed. deleted.
2. Criteria related to counting children 2. Covered by reg. note
in private schools and certain Indian deleted.
children.
300.754--Annual report of children served-
other responsibilities of SEA:
Data are not to go to Secretary In discussion
in personally identifiable form. under Sec. 300.754.
------------------------------------------------------------------------
Part 303
------------------------------------------------------------------------
303.19--Parent:
Definition: examples of Added to Reg in
grandparent, stepparent. Sec. 303.19(a)(3).
303.510--Adopting Complaint Procedures:
1. Complaints can be against any public 1. Public/private added
agency or private provider; these to Reg in Sec.
procedures are in addition to other 303.510(a)(1); ``other
rights. rights'' in discussion
under Sec. 303.512.
2. Compensatory services possible........ 2. Added to Reg in Sec.
303.510(b).
303.511--An organization or individual may
file a complaint:
Complaints from out-of-state OK. Added to Reg in
Sec. 303.510(a)(1).
303.512--Minimum State complaint procedures:
1. Same issues in complaint and due 1. Added to Reg in Sec.
process hearing. 303.512(c)(1).
2. Issues previously decided in due 2. Added to Reg in Sec.
process hearing. 303.512(c)(2).
303.520--Policies related to payment for
services:
1. Use of private insurance must be 1. Deleted.
voluntary.
2. State can use Part C funds to pay 2. Deleted.
insurance costs.
3. Insurance reimbursements not treated 3. ``Program income''
as program income; spending Federal added to discussion
reimbursements doesn't violate under Sec. 303.512;
nonsupplanting rule. ``nonsupplanting'' added
to Reg in Sec.
303.512(d)(2).
------------------------------------------------------------------------
\1\ All notes have been removed as notes from the regulations. The
substance of certain notes has been added to the text of the
regulation, or included in the Notice of Interpretation on IEPs in
``Appendix A.'' A description of each of these notes (and most of the
other notes in the NPRM) is included in the ``discussion'' under the
Analysis of Comments (Attachment 1 to the final regulations). Column
II, above, describes the primary action taken with each note (e.g.,
(1) ``Added to Reg * * *'' (or to Appendix A); (2) ``In discussion
under * * *;'' or ``Deleted.'')
[FR Doc. 99-5754 Filed 3-11-99; 8:45 am]
BILLING CODE 4000-01-P
