[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 1998 Edition]
[From the U.S. Government Printing Office]
[[Page i]]
34
Education
PARTS 300 to 399
Revised as of July 1, 1998
CONTAINING
A CODIFICATION OF DOCUMENTS
OF GENERAL APPLICABILITY
AND FUTURE EFFECT
AS OF JULY 1, 1998
With Ancillaries
Published by
the Office of the Federal Register
National Archives and Records
Administration
as a Special Edition of
the Federal Register
[[Page ii]]
U.S. GOVERNMENT PRINTING OFFICE
WASHINGTON : 1998
For sale by U.S. Government Printing Office
Superintendent of Documents, Mail Stop: SSOP, Washington, DC 20402-9328
[[Page iii]]
Table of Contents
Page
Explanation................................................. v
Title 34:
Subtitle B--Regulations of the Offices of the Department
of Education (Continued)..............................
Chapter III--Office of Special Education and
Rehabilitative Services, Department of Education
(Parts 300-399)....................................... 5
Findings Aids:
Table of CFR Titles and Chapters.......................... 487
Alphabetical List of Agencies Appearing in the CFR........ 505
List of CFR Sections Affected............................. 515
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Cite this Code: CFR
To cite the regulations in this volume use title, part and
section number. Thus, 34 CFR 300.1 refers to title 34, part
300, section 1.
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EXPLANATION
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Each volume of the Code is revised at least once each calendar year
and issued on a quarterly basis approximately as follows:
Title 1 through Title 16.................................as of January 1
Title 17 through Title 27..................................as of April 1
Title 28 through Title 41...................................as of July 1
Title 42 through Title 50................................as of October 1
The appropriate revision date is printed on the cover of each
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[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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[[Page vii]]
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Raymond A. Mosley,
Director,
Office of the Federal Register.
July 1, 1998.
[[Page ix]]
THIS TITLE
Title 34--Education is presently composed of three volumes (parts 1
to 299, parts 300 to 399, and part 400 to End). The contents of these
volumes represent all regulations codified under this title of the CFR
as of July 1, 1998.
A redesignation table appears in the Finding Aids section of the
last volume.
For this volume, Gregory R. Walton was Chief Editor. The Code of
Federal Regulations publication program is under the direction of
Frances D. McDonald, assisted by Alomha S. Morris.
[[Page x]]
[[Page 1]]
TITLE 34--EDUCATION
(This book contains parts 300 to 399)
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SUBTITLE B--Regulations of the Offices of the Department of Education
(Continued)
Part
Chapter III--Office of Special Education and Rehabilitative
Services, Department of Education......................... 300
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Subtitle B--Regulations of the Offices of the Department of Education
(Continued)
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CHAPTER III--OFFICE OF SPECIAL EDUCATION AND REHABILITATIVE SERVICES, DEPARTMENT OF EDUCATION
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Part Page
300 Assistance to states for the education of
children with disabilities.............. 9
301 Preschool grants for children with
disabilities............................ 90
303 Early intervention program for infants and
toddlers with disabilities.............. 95
304 Removal of architectural barriers to
individuals with disabilities program... 135
305 Regional Resource and Federal Centers (Eff.
until Oct. 1, 1998)..................... 140
307 Services for children with deaf-blindness
(Eff. until Oct. 1, 1998)............... 145
309 Early education program for children with
disabilities (Eff. until Oct. 1, 1998).. 157
315 Program for children with severe
disabilities (Eff. until Oct. 1, 1998).. 164
316 Training personnel for the education of
individuals with disabilities--parent
training and information centers (Eff.
until Oct. 1, 1998)..................... 171
318 Training personnel for the education of
individuals with disabilities--grants
for personnel training (Eff. until Oct.
1, 1998)................................ 177
319 Training personnel for the education of
individuals with disabilities--grants to
State educational agencies and
institutions of higher education (Eff.
until Oct. 1, 1998)..................... 190
320 Clearinghouses (Eff. until Oct. 1, 1998).... 196
324 Research in education of individuals with
disabilities program (Eff. until Oct. 1,
1998)................................... 201
325 State systems for transition services for
youth with disabilities program (Eff.
until Oct. 1, 1998)..................... 208
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326 Secondary education and transitional
services for youth with disabilities
program (Eff. until Oct. 1, 1998)....... 213
327 Special studies program (Eff. until Oct. 1,
1998)................................... 220
328 Program for children and youth with serious
emotional disturbance (Eff. until Oct.
1, 1998)................................ 226
330 Captioned films including videos loan
service program for deaf and hard of
hearing individuals (Eff. until Oct. 1,
1998)................................... 231
331 Educational media and descriptive videos
loan service program for individuals
with disabilities (Eff. until Oct. 1,
1998)................................... 232
332 Educational media research, production,
distribution, and training (Eff. until
Oct. 1, 1998)........................... 233
333 Technology, educational media, and materials
for individuals with disabilities
program (Eff. until Oct. 1, 1998)....... 238
338 Postsecondary education programs for
individuals with disabilities (Eff.
until Oct. 1, 1998)..................... 243
345 State grants program for technology-related
assistance for individuals with
disabilities............................ 247
350 Disability and rehabilitation research
projects and centers program............ 266
356 Disability and rehabilitation research:
Research fellowships.................... 281
359 Disability and rehabilitation research:
Special projects and demonstrations for
spinal cord injuries.................... 284
361 The State vocational rehabilitation services
program................................. 287
363 The State supported employment services
program................................. 339
364 State independent living services program
and centers for independent living
program: General provisions............. 345
365 State independent living services........... 365
366 Centers for independent living.............. 368
367 Independent living services for older
individuals who are blind............... 387
369 Vocational rehabilitation service projects.. 394
370 Client assistance program................... 401
371 Vocational rehabilitation service projects
for American Indians with disabilities.. 411
376 Special projects and demonstrations for
providing transitional rehabilitation
services to youth with disabilities..... 416
377 Demonstration projects to increase client
choice program.......................... 418
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379 Projects with industry...................... 424
380 Special projects and demonstrations for
providing supported employment services
to individuals with the most severe
disabilities and technical assistance
projects................................ 433
381 Protection and advocacy of individual rights 437
385 Rehabilitation training..................... 443
386 Rehabilitation training: Rehabilitation
long-term training...................... 450
387 Experimental and innovative training........ 456
388 State vocational rehabilitation unit in-
service training........................ 458
389 Rehabilitation continuing education programs 461
390 Rehabilitation short-term training.......... 463
395 Vending facility program for the blind on
Federal and other property.............. 464
396 Training of interpreters for individuals who
are deaf and individuals who are deaf-
blind................................... 480
397-399
[Reserved]
[[Page 9]]
PART 300--ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES--Table of Contents
Subpart A--General
Purpose, Applicability, and Regulations That Apply to This Program
Sec.
300.1 Purpose.
300.2 Applicability to State, local, and private agencies.
300.3 Regulations that apply.
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Children with disabilities.
300.8 Free appropriate public education.
300.9 Include.
300.10 Intermediate educational unit.
300.11 Local educational agency.
300.12 Native language.
300.13 Parent.
300.14 Public agency.
300.15 Qualified.
300.16 Related services.
300.17 Special education.
300.18 Transition services.
Subpart B--State Plans and Local Educational Agency Applications
State Plans--General
300.110 Condition of assistance.
300.111 Content of plan.
State Plans--Contents
300.121 Right to a free appropriate public education.
300.122 Timelines and ages for free appropriate public education.
300.123 Full educational opportunity goal.
300.124 [Reserved]
300.125 Full educational opportunity goal--timetable.
300.126 Full educational opportunity goal--facilities, personnel, and
services.
300.127 Priorities.
300.128 Identification, location, and evaluation of children with
disabilities.
300.129 Confidentiality of personally identifiable information.
300.130 Individualized education programs.
300.131 Procedural safeguards.
300.132 Least restrictive environment.
300.133 Protection in evaluation procedures.
300.134 Responsibility of State educational agency for all educational
programs.
300.135 [Reserved]
300.136 Implementation procedures--State educational agency.
300.137 Procedures for consultation.
300.138 Other Federal programs.
300.139 Comprehensive system of personnel development.
300.140 Private schools.
300.141 Recovery of funds for misclassified children.
300.142-300.143 [Reserved]
300.144 Hearing on application.
300.145 Prohibition of commingling.
300.146 Annual evaluation.
300.147 State advisory panel.
300.148 Policies and procedures for use of part B funds.
300.149 Description of use of part B funds.
300.150 State-level nonsupplanting.
300.151 Additional information if the State educational agency provides
direct services.
300.152 Interagency agreements.
300.153 Personnel standards.
300.154 Transition of individuals from part H to part B.
Local Educational Agency Applications--General
300.180 Submission of application.
300.181 [Reserved]
300.182 The excess cost requirement.
300.183 Meeting the excess cost requirement.
300.184 Excess costs--computation of minimum amount.
300.185 Computation of excess costs--consolidated application.
300.186 Excess costs--limitation on use of part B funds.
300.187-300.189 [Reserved]
300.190 Consolidated applications.
300.191 [Reserved]
300.192 State regulation of consolidated applications.
300.193 State educational agency approval; disapproval.
300.194 Withholding.
Local Educational Agency Applications--Contents
300.220 Child identification.
300.221 Confidentiality of personally identifiable information.
300.222 Full educational opportunity goal--timetable.
300.223 Facilities, personnel, and services.
300.224 Personnel development.
300.225 Priorities.
300.226 Parent involvement.
300.227 Participation in regular education programs.
300.228 [Reserved]
300.229 Excess cost.
300.230 Nonsupplanting.
300.231 Comparable services.
300.232-300.234 [Reserved]
300.235 Individualized education programs.
300.236 [Reserved]
300.237 Procedural safeguards.
300.238 Use of part B funds.
300.239 [Reserved]
300.240 Other requirements.
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Application From Secretary of the Interior
300.260 Submission of application; approval.
300.261 Public participation.
300.262 Use of part B funds.
300.263 Applicable regulations.
Public Participation
300.280 Public hearings before adopting a State plan.
300.281 Notice.
300.282 Opportunity to participate; comment period.
300.283 Review of public comments before adopting plan.
300.284 Publication and availability of approved plan.
Subpart C--Services
Free Appropriate Public Education
300.300 Timelines for free appropriate public education.
300.301 Free appropriate public education--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.
Priorities in the Use of Part B Funds
300.320 Definitions of ``first priority children'' and ``second
priority children.''
300.321 Priorities.
300.322 [Reserved]
300.323 Services to other children.
300.324 Application of local educational agency to use funds for the
second priority.
Individualized Education Programs
300.340 Definitions.
300.341 State educational agency responsibility.
300.342 When individualized education programs must be in effect.
300.343 Meetings.
300.344 Participants in meetings.
300.345 Parent participation.
300.346 Content of individualized education program.
300.347 Agency responsibilities for transition services.
300.348 Private school placements by public agencies.
300.349 Children with disabilities in parochial or other private
schools.
300.350 Individualized education program--accountability.
Direct Service by the State Educational Agency
300.360 Use of local educational agency allocation for direct services.
300.361 Nature and location of services.
300.370 Use of State agency allocations.
300.371 State matching.
300.372 Applicability of nonsupplanting requirement.
Comprehensive System of Personnel Development
300.380 General.
300.381 Adequate supply of qualified personnel.
300.382 Personnel preparation and continuing education.
300.383 Data system on personnel and personnel development.
300.384-300.387 [Reserved]
Subpart D--Private Schools
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
300.400 Applicability of Secs. 300.400-300.402.
300.401 Responsibility of State educational agency.
300.402 Implementation by State educational agency.
300.403 Placement of children by parents.
Children With Disabilities Enrolled by Their Parents in Private Schools
300.450 Definition of ``private school children with disabilities.''
300.451 State educational agency responsibility.
300.452 Local educational agency responsibility.
Procedures for By-Pass
300.480 By-pass--general.
300.481 Provisions for services under a by-pass.
Due Process Procedures
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 Definitions of ``consent'', ``evaluation,'' and ``personally
identifiable''.
300.501 General responsibility of public agencies.
300.502 Opportunity to examine records.
[[Page 11]]
300.503 Independent educational evaluation.
300.504 Prior notice; parent consent.
300.505 Content of notice.
300.506 Impartial due process hearing.
300.507 Impartial hearing officer.
300.508 Hearing rights.
300.509 Hearing decision; appeal.
300.510 Administrative appeal; impartial review.
300.511 Civil action.
300.512 Timelines and convenience of hearings and reviews.
300.513 Child's status during proceedings.
300.514 Surrogate parents.
300.515 Attorneys' fees.
Protection in Evaluation Procedures
300.530 General.
300.531 Preplacement evaluation.
300.532 Evaluation procedures.
300.533 Placement procedures.
300.534 Reevaluation.
Additional Procedures for Evaluating Children with Specific Learning
Disabilities
300.540 Additional team members.
300.541 Criteria for determining the existence of a specific learning
disability.
300.542 Observation.
300.543 Written report.
Least Restrictive Environment
300.550 General.
300.551 Continuum of alternative placements.
300.552 Placements.
300.553 Nonacademic settings.
300.554 Children in public or private institutions.
300.555 Technical assistance and training activities.
300.556 Monitoring activities.
Confidentiality of Information
300.560 Definitions.
300.561 Notice to parents.
300.562 Access rights.
300.563 Record of access.
300.564 Records on more than one child.
300.565 List of types and locations of information.
300.566 Fees.
300.567 Amendment of records at parent's request.
300.568 Opportunity for a hearing.
300.569 Result of hearing.
300.570 Hearing procedures.
300.571 Consent.
300.572 Safeguards.
300.573 Destruction of information.
300.574 Children's rights.
300.575 Enforcement.
300.576 Department.
Department Procedures
300.580 [Reserved]
300.581 Disapproval of a State plan.
300.582 Content of notice.
300.583 Hearing official or panel.
300.584 Hearing procedures.
300.585 Initial decision; final decision.
300.586 Filing requirements.
300.587 Judicial review.
300.588 [Reserved]
300.589 Waiver of requirement regarding supplementing and 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.
Use of Funds
300.620 Federal funds for State administration.
300.621 Allowable costs.
State Advisory Panel
300.650 Establishment.
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 State entitlement; formula.
300.702 Limitations and exclusions.
300.703 Ratable reductions.
300.704 Hold harmless provision.
300.705 Allocation for State in which by-pass is implemented for
private school children with disabilities.
300.706 Within-State distribution: Fiscal year 1979 and after.
300.707 Local educational agency entitlement; formula.
300.708 Reallocation of local educational agency funds.
300.709 Payments to the Secretary of the Interior for the education of
Indian children.
300.710 Payments to the Secretary of the Interior for Indian tribes or
tribal organizations.
300.711 Entitlements to jurisdictions.
[[Page 12]]
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
State educational agency.
Appendixes A and B to Part 300 [Reserved]
Appendix C to Part 300--Notice of Interpretation
Authority: 20 U.S.C. 1411-1420, unless otherwise noted.
Source: 57 FR 44798, Sept. 29, 1992, unless otherwise noted.
Subpart A--General
Purpose, Applicability, and Regulations That Apply to this Program
Sec. 300.1 Purpose.
The purpose of this part is--
(a) To ensure that all children with disabilities have available to
them a free appropriate public education that includes special education
and related services to meet their unique needs;
(b) To ensure that the rights of children with disabilities and
their parents are protected;
(c) To assist States and localities to provide for the education of
all children with disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate
those children.
(Authority: 20 U.S.C. 1401 Note)
Sec. 300.2 Applicability to State, local, and private agencies.
(a) States. This part applies to each State that receives payments
under Part B of the Act.
(b) Public agencies within the State. The State plan is submitted by
the State educational agency on behalf of the State as a whole.
Therefore, the provisions of this part apply to all political
subdivisions of the State that are involved in the education of children
with disabilities. These would include:
(1) The State educational agency;
(2) Local educational agencies and intermediate educational units;
(3) Other State agencies and schools (such as Departments of Mental
Health and Welfare and State schools for students with deafness or
students with blindness); and
(4) State correctional facilities.
(c) Private schools and facilities. Each public agency in the State
is responsible for ensuring that the rights and protections under this
part are given to children referred to or placed in private schools and
facilities by that public agency. (See Secs. 300.400-300.402)
(Authority: 20 U.S.C. 1412(1), (6); 1413(a); 1413(a)(4)(B))
Note: The requirements of this part are binding on each public
agency that has direct or delegated authority to provide special
education and related services in a State that receives funds under Part
B of the Act, regardless of whether that agency is receiving funds under
Part B.
Sec. 300.3 Regulations that apply.
The following regulations apply to this program:
(a) 34 CFR part 76 (State-Administered Programs) except for
Secs. 76.780-76.782.
(b) 34 CFR part 77 (Definitions).
(c) 34 CFR part 79 (Intergovernmental Review of Department of
Education Programs and Activities).
(d) 34 CFR part 80 (Uniform Administrative Requirements for Grants
and Cooperative Agreements to State and Local Governments).
(e) 34 CFR part 81 (General Education Provisions Act-- Enforcement).
(f) 34 CFR part 82 (New Restrictions on Lobbying).
(g) 34 CFR part 85 (Governmentwide Debarment and Suspension
(Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace
(Grants)).
(h) 34 CFR part 86 (Drug-Free Schools and Campuses).
(i) The regulations in this part--34 CFR part 300 (Assistance to
States for Education of Children with Disabilities).
(Authority: 20 U.S.C. 1221e-3(a)(1))
Definitions
Note 1: Definitions of terms that are used throughout these
regulations are included in
[[Page 13]]
this subpart. Other terms are defined in the specific subparts in which
they are used. Below is a list of those terms and the specific sections
in which they are defined:
Appropriate professional requirements in the State (Sec. 300.153(a)(1))
Average per pupil expenditure in public elementary and secondary schools
in the United States (Sec. 300.701(c))
Consent (Sec. 300.500)
Destruction (Sec. 300.560)
Direct services (Sec. 300.370(b)(1))
Education records (Sec. 300.560)
Evaluation (Sec. 300.500)
First priority children (Sec. 300.320(a)) Highest requirements in the
State applicable to a specific profession or discipline
(Sec. 300.153(a)(2))
Independent educational evaluation (Sec. 300.503(a)(3)(i))
Individualized education program (Sec. 300.340)
Participating agency, as used in the IEP requirements in Secs. 300.346
and 300.347 (Sec. 300.340(b))
Participating agency, as used in the confidentiality requirements in
Secs. 300.560-300.576 (Sec. 300.560)
Party or parties (Sec. 300.584(a))
Personally identifiable (Sec. 300.500)
Private school children with disabilities (Sec. 300.450)
Profession or discipline (Sec. 300.153(a)(3))
Public expense (Sec. 300.503(a)(3)(ii))
Second priority children (Sec. 300.320(b))
Special definition of ``State'' (Sec. 300.700)
State-approved or recognized certification, licensing, registration, or
other comparable requirements (Sec. 300.153(a)(4))
Support services (Sec. 300.370(b)(2))
Note 2: Below are abbreviations for selected terms that are used
throughout these regulations:
``FAPE'' means ``free appropriate public education.''
``IEP'' means ``individualized education program.''
``IEU'' means ``intermediate educational unit.''
``LEA'' means ``local educational agency.''
``LRE'' means ``least restrictive environment.''
``SEA'' means ``State educational agency.''
As appropriate, each abbreviation is used interchangeably with its
nonabbreviated term.
Sec. 300.4 Act.
As used in this part, ``Act'' means the Individuals with
Disabilities Education Act, formerly the Education of the Handicapped
Act.
(Authority: 20 U.S.C. 1400)
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 children
with disabilities.
(Authority: 20 U.S.C. 1401(a)(25))
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,
retaining, 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 children with
disabilities.
(Authority: 20 U.S.C. 1401(a)(26))
Note: The definitions of ``assistive technology device'' and
``assistive technology service'' used in this part are taken directly
from section 602(a)(25)-(26) of the Act, but in accordance with Part B,
the statutory reference to ``individual with a disability'' has been
replaced with ``child with a disability.'' The Act's definitions of
``assistive technology device'' and ``assistive technology service''
incorporate verbatim the definitions of these terms used in the
Technology-
[[Page 14]]
Related Assistance for Individuals with Disabilities Act of 1988.
Sec. 300.7 Children with disabilities.
(a)(1) As used in this part, the term ``children with disabilities''
means those children evaluated in accordance with Secs. 300.530-300.534
as having mental retardation, hearing impairments including deafness,
speech or language impairments, visual impairments including blindness,
serious emotional disturbance, orthopedic impairments, autism, traumatic
brain injury, other health impairments, specific learning disabilities,
deaf-blindness, or multiple disabilities, and who because of those
impairments need special education and related services.
(2) The term ``children with disabilities'' for children aged 3
through 5 may, at a State's discretion, include children--
(i) Who are 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
(ii) Who, for that reason, need special education and related
services.
(b) The terms used in this definition are defined as follows:
(1) ``Autism'' means a developmental disability significantly
affecting verbal and nonverbal communication and social interaction,
generally evident before age 3, that adversely affects a child's
educational performance. Other characteristics often associated with
autism are engagement in repetitive activities and stereotyped
movements, resistance to environmental change or change in daily
routines, and unusual responses to sensory experiences. The term does
not apply if a child's educational performance is adversely affected
primarily because the child has a serious emotional disturbance, as
defined in paragraph (b)(9) of this section.
(2) ``Deaf-blindness'' means concomitant hearing and visual
impairments, the combination of which causes such severe communication
and other developmental and educational problems that they cannot be
accommodated in special education programs solely for children with
deafness or children with blindness.
(3) ``Deafness'' means a hearing impairment that is so severe that
the child is impaired in processing linguistic information through
hearing, with or without amplification, that adversely affects a child's
educational performance.
(4) ``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.
(5) ``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.
(6) ``Multiple disabilities'' means concomitant impairments (such as
mental retardation-blindness, mental retardation-orthopedic impairment,
etc.), the combination of which causes such severe educational problems
that they cannot be accommodated in special education programs solely
for one of the impairments. The term does not include deaf-blindness.
(7) ``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).
(8) ``Other health impairment'' means having limited strength,
vitality or alertness, due to chronic or acute health problems such as a
heart condition, tuberculosis, rheumatic fever, nephritis, asthma,
sickle cell anemia, hemophilia, epilepsy, lead poisoning, leukemia, or
diabetes that adversely affects a child's educational performance.
(9) ``Serious emotional disturbance'' is defined as follows:
(i) The term means a condition exhibiting one or more of the
following
[[Page 15]]
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; or
(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 a serious emotional disturbance.
(10) ``Specific learning disability'' 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. The term includes such conditions as
perceptual disabilities, brain injury, minimal brain dysfunction,
dyslexia, and developmental aphasia. The term does not apply to children
who have 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 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(a)(1))
Note: If a child manifests characteristics of the disability
category ``autism'' after age 3, that child still could be diagnosed as
having ``autism'' if the criteria in paragraph (b)(1) of this section
are satisfied.
Sec. 300.8 Free appropriate public education.
As used in this part, the term ``free appropriate public education''
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 involved; and
(d) Are provided in conformity with an IEP that meets the
requirements of Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1401(a)(18))
Sec. 300.9 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. 1417(b))
Sec. 300.10 Intermediate educational unit.
As used in this part, the term ``intermediate educational unit''
means any public authority, other than an LEA, that--
(a) Is under the general supervision of an SEA;
[[Page 16]]
(b) Is established by State law for the purpose of providing free
public education on a regional basis; and
(c) Provides special education and related services to children with
disabilities within that State.
(Authority: 20 U.S.C. 1401(a)(23))
Sec. 300.11 Local educational agency.
(a) [Reserved]
(b) For the purposes of this part, the term ``local educational
agency'' also includes intermediate educational units.
(Authority: 20 U.S.C. 1401(a)(8))
Sec. 300.12 Native language.
As used in this part, the term ``native language'' has the meaning
given that term by section 703(a)(2) of the Bilingual Education Act,
which provides as follows:
The term ``native language,'' when used with reference to an
individual of limited English proficiency, means the language normally
used by that individual, or in the case of a child, the language
normally used by the parents of the child.
(Authority: 20 U.S.C. 3283(a)(2); 1401(a)(22))
Note: Section 602(a)(22) of the Act states that the term ``native
language'' has the same meaning as the definition from section 703(a)(2)
of the Bilingual Education Act. (The term is used in the prior notice
and evaluation sections under Sec. 300.505(b)(2) and
Sec. 300.532(a)(1).) In using the term, the Act does not prevent the
following means of communication:
(1) In all direct contact with a child (including evaluation of the
child), communication would be in the language normally used by the
child and not that of the parents, if there is a difference between the
two.
(2) For individuals with deafness or blindness, or for individuals
with no written language, the mode of communication would be that
normally used by the individual (such as sign language, braille, or oral
communication).
Sec. 300.13 Parent.
As used in this part, the term ``parent'' means a parent, a
guardian, a person acting as a parent of a child, or a surrogate parent
who has been appointed in accordance with Sec. 300.514. The term does
not include the State if the child is a ward of the State.
(Authority: 20 U.S.C. 1415)
Note: The term ``parent'' is defined to include persons acting in
the place of a parent, such as a grandmother or stepparent with whom a
child lives, as well as persons who are legally responsible for a
child's welfare.
Sec. 300.14 Public agency.
As used in this part, the term ``public agency'' includes the SEA,
LEAs, IEUs, and any other political subdivisions of the State that are
responsible for providing education to children with disabilities.
(Authority: 20 U.S.C. 1412(2)(B); 1412(6); 1413(a))
Sec. 300.15 Qualified.
As used in this part, the term ``qualified'' means that a person has
met SEA approved or recognized certification, licensing, registration,
or other comparable requirements that apply to the area in which he or
she is providing special education or related services.
(Authority: 20 U.S.C. 1417(b))
Sec. 300.16 Related services.
(a) As used in this part, the term ``related services'' means
transportation and such developmental, corrective, and other supportive
services as are required to assist a child with a disability to benefit
from special education, and includes speech pathology and audiology,
psychological services, physical and occupational therapy, recreation,
including therapeutic recreation, early identification and assessment of
disabilities in children, counseling services, including rehabilitation
counseling, and medical services for diagnostic or evaluation purposes.
The term also includes school health services, social work services in
schools, and parent counseling and training.
(b) The terms used in this definition are defined as follows:
(1) ``Audiology'' includes--
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing loss,
including referral for medical or other professional attention for the
habilitation of hearing;
[[Page 17]]
(iii) Provision of habilitative activities, such as language
habilitation, auditory training, speech reading (lip-reading), hearing
evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of
hearing loss;
(v) Counseling and guidance of pupils, parents, and teachers
regarding hearing loss; and
(vi) Determination of the child's need for group and individual
amplification, selecting and fitting an appropriate aid, and evaluating
the effectiveness of amplification.
(2) ``Counseling services'' means services provided by qualified
social workers, psychologists, guidance counselors, or other qualified
personnel.
(3) ``Early identification and assessment of disabilities in
children'' means the implementation of a formal plan for identifying a
disability as early as possible in a child's life.
(4) ``Medical services'' means services provided by a licensed
physician to determine a child's medically related disability that
results in the child's need for special education and related services.
(5) ``Occupational therapy'' includes--
(i) Improving, developing or restoring functions impaired or lost
through illness, injury, or deprivation;
(ii) Improving ability to perform tasks for independent functioning
when functions are impaired or lost; and
(iii) Preventing, through early intervention, initial or further
impairment or loss of function.
(6) ``Parent counseling and training'' means assisting parents in
understanding the special needs of their child and providing parents
with information about child development.
(7) ``Physical therapy'' means services provided by a qualified
physical therapist.
(8) ``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; and
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents.
(9) ``Recreation'' includes--
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(10) ``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 students with disabilities by
vocational rehabilitation programs funded under the Rehabilitation Act
of 1973, as amended.
(11) ``School health services'' means services provided by a
qualified school nurse or other qualified person.
(12) ``Social work services in schools'' includes--
(i) Preparing a social or developmental history on a child with a
disability;
(ii) Group and individual counseling with the child and family;
(iii) Working with those problems in a child's living situation
(home, school, and community) that affect the child's adjustment in
school; and
(iv) Mobilizing school and community resources to enable the child
to learn as effectively as possible in his or her educational program.
(13) ``Speech pathology'' 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;
[[Page 18]]
(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.
(14) ``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(a)(17))
Note: With respect to related services, the Senate Report states:
The Committee bill provides a definition of related services, making
clear that all such related services may not be required for each
individual child and that such term includes early identification and
assessment of handicapping conditions and the provision of services to
minimize the effects of such conditions.
(S. Rep. No. 94-168, p. 12 (1975))
The list of related services is not exhaustive and may include other
developmental, corrective, or supportive services (such as artistic and
cultural programs, and art, music, and dance therapy), if they are
required to assist a child with a disability to benefit from special
education.
There are certain kinds of services that might be provided by
persons from varying professional backgrounds and with a variety of
operational titles, depending upon requirements in individual States.
For example, counseling services might be provided by social workers,
psychologists, or guidance counselors, and psychological testing might
be done by qualified psychological examiners, psychometrists, or
psychologists, depending upon State standards.
Each related service defined under this part may include appropriate
administrative and supervisory activities that are necessary for program
planning, management, and evaluation.
Sec. 300.17 Special education.
(a)(1) As used in this part, the term ``special education'' means
specially designed instruction, at no cost to the parents, to meet the
unique needs of a child with a disability, including--
(i) Instruction conducted in the classroom, in the home, in
hospitals and institutions, and in other settings; and
(ii) Instruction in physical education.
(2) The term includes speech pathology, or any other related
service, if the service consists of specially designed instruction, at
no cost to the parents, to meet the unique needs of a child with a
disability, and is considered special education rather than a related
service under State standards.
(3) The term also includes vocational education if it consists of
specially designed instruction, at no cost to the parents, to meet the
unique needs of a child with a disability.
(b) The terms in this definition are defined as follows:
(1) ``At no cost'' means that all specially designed instruction is
provided without charge, but does not preclude incidental fees that are
normally charged to nondisabled students or their parents as a part of
the regular education program.
(2) ``Physical education'' is defined as follows:
(i) The term means the development of--
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports).
(ii) The term includes special physical education, adaptive physical
education, movement education, and motor development.
(Authority: 20 U.S.C. 1401(a)(16))
(3) 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(16))
Note 1: The definition of special education is a particularly
important one under these regulations, since a child does not have a
disability under this part unless he or she needs special education.
(See the definition of children with disabilities in Sec. 300.7.) The
definition of related services (Sec. 300.16) also depends on this
definition, since a related service must be necessary for a child to
benefit from special education. Therefore, if a child does not need
special education, there can be no related services, and the child is
not a child
[[Page 19]]
with a disability and is therefore not covered under the Act.
Note 2: The above definition of vocational education is taken from
the Vocational Education Act of 1963, as amended by Public Law 94-482.
Under that Act, ``vocational education'' includes industrial arts and
consumer and homemaking education programs.
[57 FR 44798, Sept. 29, 1992; 57 FR 48694, Oct. 27, 1992]
Sec. 300.18 Transition services.
(a) As used in this part, ``transition services'' means a
coordinated set of activities for a student, designed within an outcome-
oriented process, that promotes movement from school to post-school
activities, including postsecondary education, vocational training,
integrated employment (including supported employment), continuing and
adult education, adult services, independent living, or community
participation.
(b) The coordinated set of activities described in paragraph (a) of
this section must--
(1) Be based on the individual student's needs, taking into account
the student's preferences and interests; and
(2) Include--
(i) Instruction;
(ii) Community experiences;
(iii) The development of employment and other post-school adult
living objectives; and
(iv) If appropriate, acquisition of daily living skills and
functional vocational evaluation.
(Authority: 20 U.S.C. 1401(a)(19))
Note: Transition services for students with disabilities may be
special education, if they are provided as specially designed
instruction, or related services, if they are required to assist a
student with a disability to benefit from special education. The list of
activities in paragraph (b) is not intended to be exhaustive.
[57 FR 44798, Sept. 29, 1992; 57 FR 48694, Oct. 27, 1992]
Subpart B--State Plans and Local Educational Agency Applications
State Plans--General
Sec. 300.110 Condition of assistance.
In order to receive funds under part B of the Act for any fiscal
year, a State must submit a State plan to the Secretary through its SEA,
which plan shall be effective for a period of 3 fiscal years.
(Authority: 20 U.S.C. 1231g, 1412, 1413)
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.111 Content of plan.
Each State plan must contain the provisions required in
Secs. 300.121-300.154.
[57 FR 48694, Oct. 27, 1992]
State Plans--Contents
Sec. 300.121 Right to a free appropriate public education.
(a) Each State plan must include information that shows that the
State has in effect a policy that ensures that all children with
disabilities have the right to FAPE within the age ranges and timelines
under Sec. 300.122.
(b) The information must include a copy of each State statute, court
order, State Attorney General opinion, and other State documents that
show the source of the policy.
(c) The information must show that the policy--
(1) Applies to all public agencies in the State;
(2) Applies to all children with disabilities;
(3) Implements the priorities established under Secs. 300.320-
300.324; and
[[Page 20]]
(4) Establishes timelines for implementing the policy, in accordance
with Sec. 300.122.
(Authority: 20 U.S.C. 1412(1), (2)(B), (6); 1413(a)(1))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.122 Timelines and ages for free appropriate public education.
(a) General. Each State plan must include in detail the policies and
procedures that the State will undertake or has undertaken in order to
ensure that FAPE is available for all children with disabilities aged 3
through 18 within the State not later than September 1, 1978, and for
all children with disabilities aged 3 through 21 within the State not
later than September 1, 1980.
(b) Documents relating to timelines. Each State plan must include a
copy of each State statute, court order, Attorney General decision, and
other State documents that demonstrate that the State has established
timelines in accordance with paragraph (a) of this section.
(c) Exception. The requirement in paragraph (a) of this section does
not apply to a State with respect to children with disabilities aged 3,
4, 5, 18, 19, 20, or 21 to the extent that the requirement would be
inconsistent with State law or practice, or the order of any court,
respecting public education for one or more of those age groups in the
State.
(d) Documents relating to exceptions. Each State plan must--
(1) Describe in detail the extent that the exception in paragraph
(c) of this section applies to the State; and
(2) Include a copy of each State law, court order, and other
documents that provide a basis for the exception.
(Authority: 20 U.S.C. 1412(2)(B))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.123 Full educational opportunity goal.
Each State plan must include in detail the policies and procedures
that the State will undertake, or has undertaken, in order to ensure
that the State has a goal of providing full educational opportunity to
all children with disabilities aged birth through 21.
(Authority: 20 U.S.C. 1412(2)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.124 [Reserved]
Sec. 300.125 Full educational opportunity goal--timetable.
Each State plan must contain a detailed timetable for accomplishing
the goal of providing full educational opportunity for all children with
disabilities.
(Authority: 20 U.S.C. 1412(2)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.126 Full educational opportunity goal--facilities, personnel, and services.
Each State plan must include a description of the kind and number of
facilities, personnel, and services necessary throughout the State to
meet the goal of providing full educational opportunity for all children
with disabilities.
(Authority: 20 U.S.C. 1412(2)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.127 Priorities.
Each State plan must include information that shows that --
(a) The State has established priorities that meet the requirements
of Secs. 300.320-300.324;
(b) The State priorities meet the timelines under Sec. 300.122; and
[[Page 21]]
(c) The State has made progress in meeting those timelines.
(Authority: 20 U.S.C. 1412(3))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.128 Identification, location, and evaluation of children with disabilities.
(a) General requirement. Each State plan must include in detail the
policies and procedures that the State will undertake, or has
undertaken, to ensure that--
(1) All children with disabilities, regardless of the severity of
their disability, and who are in need of special education and related
services are identified, located, and evaluated; and
(2) A practical method is developed and implemented to determine
which children are currently receiving needed special education and
related services and which children are not currently receiving needed
special education and related services.
(b) Information. Each State plan must:
(1) Designate 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) Name each agency that participates in the planning and
implementation and describe the nature and extent of its participation.
(3) Describe the extent that--
(i) The activities described in paragraph (a) of this section have
been achieved under the current State plan; and
(ii) The resources named for these activities in that plan have been
used.
(4) Describe each type of activity to be carried out during the next
school year, including the role of the agency named under paragraph
(b)(1) of this section, timelines for completing those activities,
resources that will be used, and expected outcomes.
(5) Describe 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.
(6) Describe the method the State uses to determine which children
are currently receiving special education and related services and which
children are not receiving special education and related services.
(Authority: 20 U.S.C. 1412(2)(C))
Note 1: The State is responsible for ensuring that all children with
disabilities are identified, located, and evaluated, including children
in all public and private agencies and institutions in the State.
Collection and use of data are subject to the confidentiality
requirements of Secs. 300.560-300.576.
Note 2: Under both Parts B and H of the Act, States are responsible
for identifying, locating, and evaluating infants and toddlers from
birth through 2 years of age who have disabilities or who are suspected
of having disabilities. In States where the SEA and the State's lead
agency for the Part H program are different and the Part H lead agency
will be participating in the child find activities described in
paragraph (a) of this section, the nature and extent of the Part H lead
agency's participation must, under paragraph (b)(2) of this section, be
included in the State plan. With the SEA's agreement, the Part H lead
agency's participation may include the actual implementation of child
find activities for infants and toddlers. The use of an interagency
agreement or other mechanism for providing for the Part H lead agency's
participation would not alter or diminish the responsibility of the SEA
to ensure compliance with all child find requirements, including the
requirement in paragraph (a)(1) of this section that all children with
disabilities who are in need of special education and related services
are evaluated.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.129 Confidentiality of personally identifiable information.
(a) Each State plan must include in detail the policies and
procedures that
[[Page 22]]
the State will undertake, or has undertaken, in order to ensure the
protection of the confidentiality of any personally identifiable
information collected, used, or maintained under this part.
(b) The Secretary shall use 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(2)(D); 1417(c))
Note: The confidentiality regulations were published in the Federal
Register in final form on February 27, 1976 (41 FR 8603-8610), and met
the requirements of Part B of the Act. Those regulations are
incorporated in Secs. 300.560-300.576.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.130 Individualized education programs.
(a) Each State plan must include information that shows that each
public agency in the State maintains records of the IEP for each child
with disabilities, and each public agency establishes, reviews, and
revises each program as provided in Secs. 300.340-300.350.
(b) Each State plan must include--
(1) A copy of each State statute, policy, and standard that
regulates the manner in which IEPs are developed, implemented, reviewed,
and revised; and
(2) The procedures that the SEA follows in monitoring and evaluating
those programs.
(Authority: 20 U.S.C. 1412(4), 1413(a)(1))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.131 Procedural safeguards.
Each State plan must include procedural safeguards that ensure that
the requirements of Secs. 300.500-300.514 are met.
(Authority: 20 U.S.C. 1412(5)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.132 Least restrictive environment.
(a) Each State plan must include procedures that ensure that the
requirements of Secs. 300.550-300.556 are met.
(b) Each State plan must include the following information:
(1) The number of children with disabilities in the State, within
each disability category, who are participating in regular education
programs, consistent with Secs. 300.550-300.556.
(2) The number of children with disabilities who are in separate
classes or separate school facilities, or who are otherwise removed from
the regular education environment.
(Authority: 20 U.S.C. 1412(5)(B))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.133 Protection in evaluation procedures.
Each State plan must include procedures that ensure that the
requirements of Secs. 300.530-300.534 are met.
(Authority: 20 U.S.C. 1412(5)(C))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.134 Responsibility of State educational agency for all educational programs.
(a) Each State plan must include information that shows that the
requirements of Sec. 300.600 are met.
(b) The information under paragraph (a) of this section must include
a copy of each State statute, State regulation, signed agreement between
respective
[[Page 23]]
agency officials, and any other documents that show compliance with that
paragraph.
(Authority: 20 U.S.C. 1412(6))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.135 [Reserved]
Sec. 300.136 Implementation procedures--State educational agency.
Each State plan must describe the procedures the SEA 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(6))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.137 Procedures for consultation.
Each State plan must include an assurance that in carrying out the
requirements of section 612 of the Act, procedures are established for
consultation with individuals involved in or concerned with the
education of children with disabilities, including individuals with
disabilities and parents of children with disabilities.
(Authority: 20 U.S.C. 1412(7)(A))
Sec. 300.138 Other Federal programs.
Each State plan must provide that programs and procedures are
established to ensure that funds received by the State or any public
agency in the State under any other Federal program, including subpart 2
of part D of chapter 1 of title I of the Elementary and Secondary
Education Act of 1965, under which there is specific authority for
assistance for the education of children with disabilities, are used by
the State, or any public agency in the State, only in a manner
consistent with the goal of providing FAPE for all children with
disabilities, except that nothing in this section limits the specific
requirements of the laws governing those Federal programs.
(Authority: 20 U.S.C. 1413(a)(2))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.139 Comprehensive system of personnel development.
Each State plan must include the procedures required under
Secs. 300.380-300.383.
(Authority: 20 U.S.C. 1413(a)(3))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.140 Private schools.
Each State plan must include policies and procedures that ensure
that the requirements of Secs. 300.400-300.403 and Secs. 300.450-300.452
are met.
(Authority: 20 U.S.C. 1413(a)(4))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.141 Recovery of funds for misclassified children.
Each State plan must include 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. 1413(a)(5))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.142-300.143 [Reserved]
Sec. 300.144 Hearing on application.
Each State plan must include procedures to ensure that the SEA does
not take any final action with respect to an application submitted by an
LEA
[[Page 24]]
before giving the LEA reasonable notice and an opportunity for a hearing
under Sec. 76.401(d) of this title.
(Authority: 20 U.S.C. 1413(a)(8))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.145 Prohibition of commingling.
Each State plan must provide assurance satisfactory to the Secretary
that funds provided under part B of the Act are not commingled with
State funds.
(Authority: 20 U.S.C. 1413(a)(9))
Note: This assurance is satisfied by the use of a separate
accounting system that includes an audit trail of the expenditure of the
part B funds. Separate bank accounts are not required. (See 34 CFR
76.702 (Fiscal control and fund accounting procedures).)
Sec. 300.146 Annual evaluation.
Each State plan must include procedures for evaluation at least
annually of the effectiveness of programs in meeting the educational
needs of children with disabilities, including evaluation of IEPs.
(Authority: 20 U.S.C. 1413(a)(11))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.147 State advisory panel.
Each State plan must provide that the requirements of Secs. 300.650-
300.653 are met.
(Authority: 20 U.S.C. 1413(a)(12))
Sec. 300.148 Policies and procedures for use of part B funds.
Each State plan must set forth 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, with particular attention
given to sections 611(b), 611(c), 611(d), 612(2), and 612(3) of the Act.
(Authority: 20 U.S.C. 1413(a)(1))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.149 Description of use of part B funds.
(a) State allocation. Each State plan must include the following
information about the State's use of funds under Sec. 300.370 and
Sec. 300.620:
(1) A list of administrative positions, and a description of duties
for each person whose salary is paid in whole or in part with those
funds.
(2) For each position, the percentage of salary paid with those
funds.
(3) A description of each administrative activity the SEA will carry
out during the next school year with those funds.
(4) A description of each direct service and each support service
that the SEA will provide during the next period covered by the State
plan with those funds, and the activities the State advisory panel will
undertake during that period with those funds.
(b) Local educational agency allocation. Each State plan must
include--
(1) An estimate of the number and percent of LEAs in the State that
will receive an allocation under this part (other than LEAs that submit
a consolidated application);
(2) An estimate of the number of LEAs that will receive an
allocation under a consolidated application;
(3) An estimate of the number of consolidated applications and the
average number of LEAs per application; and
(4) A description of direct services that the SEA will provide under
Sec. 300.360.
(Authority: 20 U.S.C.1412(6))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.150 State-level nonsupplanting.
Each State plan must provide assurance satisfactory to the Secretary
that funds provided under this part will be
[[Page 25]]
used so as to supplement and increase the level of Federal (other than
funds available under this part), 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 this part and in no case to supplant those
Federal (other than funds available under this part), State, and local
funds unless a waiver is granted in accordance with Sec. 300.589.
(Authority: 20 U.S.C. 1413(a)(9))
Note: This requirement is distinct from the LEA nonsupplanting
provision already contained in these regulations at Sec. 300.230. Under
this State-level provision, the State must assure that part B funds
distributed to LEAs and IEUs will be used to supplement and not supplant
other Federal, State, and local funds (including funds not under the
control of educational agencies) that would have been expended for
special education and related services provided to children with
disabilities in the absence of the part B funds. The portion of part B
funds that are not distributed to LEAs or IEUs under the statutory
formula (20 U.S.C. 1411(d)) are not subject to this nonsupplanting
provision. See 20 U.S.C. 1411(c)(3). States may not permit LEAs or IEUs
to use part B funds to satisfy a financial commitment for services that
would have been paid for by a health or other agency pursuant to policy
or practice but for the fact that these services are now included in the
IEPs of children with disabilities.
(H.R. Rep. No. 860, 99th Cong., 21-22 (1986))
Sec. 300.151 Additional information if the State educational agency provides direct services.
If an SEA provides FAPE for children with disabilities or provides
them with direct services, its State plan must include the information
required under Secs. 300.226, 300.227, 300.231, and 300.235.
(Authority: 20 U.S.C. 1413(b))
Sec. 300.152 Interagency agreements.
(a) Each State plan must set forth policies and procedures for
developing and implementing interagency agreements between--
(1) The SEA; and
(2) All other State and local agencies that provide or pay for
services required under this part for children with disabilities.
(b) The policies and procedures referred to in paragraph (a) of this
section must--
(1) Describe the role that each of those agencies plays in providing
or paying for services required under this part for children with
disabilities; and
(2) Provide for the development and implementation of interagency
agreements that--
(i) Define the financial responsibility of each agency for providing
children with disabilities with FAPE;
(ii) Establish procedures for resolving interagency disputes among
agencies that are parties to the agreements; and
(iii) Establish procedures under which LEAs may initiate proceedings
in order to secure reimbursement from agencies that are parties to the
agreements or otherwise implement the provisions of the agreements.
(Authority: 20 U.S.C. 1413(a)(13))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.153 Personnel standards.
(a) As used in this part:
(1) Appropriate professional requirements in the State means entry
level requirements that--
(i) Are based on the highest requirements in the State applicable to
the profession or discipline in which a person is providing special
education or related services; and
(ii) Establish suitable qualifications for personnel providing
special education and related services under this part to children and
youth with disabilities who are served by State, local, and private
agencies (see Sec. 300.2).
(2) Highest requirements in the State applicable to a specific
profession or discipline means the highest entry-level academic degree
needed for any State approved or recognized certification, licensing,
registration, or other comparable requirements that apply to that
profession or discipline.
(3) Profession or discipline means a specific occupational category
that--
(i) Provides special education and related services to children with
disabilities under this part;
[[Page 26]]
(ii) Has been established or designated by the State; and
(iii) Has a required scope of responsibility and degree of
supervision.
(4) State approved or recognized certification, licensing,
registration, or other comparable requirements means the requirements
that a State legislature either has enacted or has authorized a State
agency to promulgate through rules to establish the entry-level
standards for employment in a specific profession or discipline in that
State.
(b)(1) Each State plan must include policies and procedures relating
to the establishment and maintenance of standards to ensure that
personnel necessary to carry out the purposes of this part are
appropriately and adequately prepared and trained.
(2) The policies and procedures required in paragraph (b)(1) of this
section must provide for the establishment and maintenance of standards
that are consistent with any State approved or recognized certification,
licensing, registration, or other comparable requirements that apply to
the profession or discipline in which a person is providing special
education or related services.
(c) To the extent that a State's standards for a profession or
discipline, including standards for temporary or emergency
certification, are not based on the highest requirements in the State
applicable to a specific profession or discipline, the State plan must
include the steps the State is taking and the procedures for notifying
public agencies and personnel of those steps and the timelines it has
established for the retraining or hiring of personnel to meet
appropriate professional requirements in the State.
(d)(1) In meeting the requirements in paragraphs (b) and (c) of this
section, a determination must be made about the status of personnel
standards in the State. That determination must be based on current
information that accurately describes, for each profession or discipline
in which personnel are providing special education or related services,
whether the applicable standards are consistent with the highest
requirements in the State for that profession or discipline.
(2) The information required in paragraph (d)(1) of this section
must be on file in the SEA, and available to the public.
(e) In identifying the highest requirements in the State for
purposes of this section, the requirements of all State statutes and the
rules of all State agencies applicable to serving children and youth
with disabilities must be considered.
(Authority: 20 U.S.C. 1413(a)(14))
Note: The regulations require that the State use its own existing
highest requirements to determine the standards appropriate to personnel
who provide special education and related services under this part. The
regulations do not require States to set any specified training
standard, such as a master's degree, for employment of personnel who
provide services under this part. In some instances, States will be
required to show that they are taking steps to retrain or to hire
personnel to meet the standards adopted by the SEA that are based on
requirements for practice in a specific profession or discipline that
were established by other State agencies. States in this position need
not, however, require personnel providing services under this part to
apply for and obtain the license, registration, or other comparable
credential required by other agencies of individuals in that profession
or discipline. The regulations permit each State to determine the
specific occupational categories required to provide special education
and related services and to revise or expand these categories as needed.
The professions or disciplines defined by the State need not be limited
to traditional occupational categories.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.154 Transition of individuals from part H to part B.
Each State plan must set forth policies and procedures relating to
the smooth transition for those individuals participating in the early
intervention program under part H of the Act who will participate in
preschool programs assisted under this part, including a method of
ensuring that when a child turns age 3 an IEP, or, if consistent with
sections 614(a)(5) and 677(d) of the Act, an individualized family
service
[[Page 27]]
plan, has been developed and implemented by the child's third birthday.
(Authority: 20 U.S.C. 1413(a)(15))
Local Educational Agency Applications--General
Sec. 300.180 Submission of application.
In order to receive payments under part B of the Act for any fiscal
year, an LEA must submit an application to the SEA.
(Authority: 20 U.S.C. 1414(a))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.181 [Reserved]
Sec. 300.182 The excess cost requirement.
An LEA may only use funds under part B of the Act for the excess
costs of providing special education and related services for children
with disabilities.
(Authority: 20 U.S.C. 1414(a)(1), (a)(2)(B)(i))
Sec. 300.183 Meeting the excess cost requirement.
(a) An LEA meets the excess cost requirement if it has on the
average spent at least the amount determined under Sec. 300.184 for the
education of each of its children with disabilities. This amount may not
include capital outlay or debt service.
(Authority: 20 U.S.C. 1402(20); 1414(a)(1))
Note: The excess cost requirement means that the LEA must spend a
certain minimum amount for the education of its children with
disabilities before part B funds are used. This ensures that children
served with part B funds have at least the same average amount spent on
them, from sources other than part B, as do the children in the school
district taken as a whole.
The minimum amount that must be spent for the education of children
with disabilities is computed under a statutory formula. Section 300.184
implements this formula and gives a step-by-step method to determine the
minimum amount. Excess costs are those costs of special education and
related services that exceed the minimum amount. Therefore, if an LEA
can show that it has (on the average) spent the minimum amount for the
education of each of its children with disabilities, it has met the
excess cost requirement, and all additional costs are excess costs. Part
B funds can then be used to pay for these additional costs, subject to
the other requirements of part B (priorities, etc.). In the Note under
Sec. 300.184, there is an example of how the minimum amount is computed.
Sec. 300.184 Excess costs--computation of minimum amount.
The minimum average amount that an LEA must spend under Sec. 300.183
for the education of each of its children with disabilities is computed
as follows:
(a) Add all expenditures of the LEA in the preceding school year,
except capital outlay and debt service--
(1) For elementary school students, if the child with a disability
is an elementary school student; or
(2) For secondary school students, if the child with a disability is
a secondary school student.
(b) From this amount, subtract the total of the following amounts
spent for elementary school students or for secondary school students,
as the case may be--
(1) Amounts the agency spent in the preceding school year from funds
awarded under part B of the Act and titles I and VII of the Elementary
and Secondary Education Act of 1965; and
(2) Amounts from State and local funds that the agency spent in the
preceding school year for--
(i) Programs for children with disabilities;
(ii) Programs to meet the special educational needs of educationally
deprived children; and
(iii) Programs of bilingual education for limited English proficient
children.
(c) Divide the result under paragraph (b) of this section by the
average number of students enrolled in the agency in the preceding
school year--
(1) In its elementary schools, if the child with a disability is an
elementary school student; or
(2) In its secondary schools, if the child with a disability is a
secondary school student.
(Authority: 20 U.S.C. 1414(a)(1))
Note: The following is an example of how an LEA might compute the
average minimum amount it must spend for the education of each of its
children with disabilities, under Sec. 300.183. This example follows the
formula in Sec. 300.184. Under the statute
[[Page 28]]
and regulations, the LEA must make one computation for children with
disabilities in its elementary schools and a separate computation for
children with disabilities in its secondary schools. The computation for
elementary school students with disabilities would be done as follows:
a. First, the LEA must determine its total amount of expenditures
for elementary school students from all sources--local, State, and
Federal (including part B)--in the preceding school year. Only capital
outlay and debt service are excluded.
Example: An LEA spent the following amounts last year for elementary
school students (including its elementary school students with
disabilities):
(1) From local tax funds............................. $2,750,000
(2) From State funds................................. 7,000,000
(3) From Federal funds............................... 750,000
------------------
10,500,000
Of this total, $500,000 was for capital outlay and debt service
relating to the education of elementary school students. This must be
subtracted from total expenditures:
$10,500,000
-500,000
------------------
Total expenditures for elementary school students
(less capital outlay and debt service)............ 10,000,000
b. Next, the LEA must subtract amounts spent for:
(1) Programs for children with disabilities;
(2) Programs to meet the special educational needs of educationally
deprived children; and
(3) Programs of bilingual education for limited English proficient
children.
These are funds that the LEA actually spent, not funds received last
year but carried over for the current school year.
Example: The LEA spent the following amounts for elementary school
students last year:
(1) From funds under chapter 1 of title I of the Elementary
and Secondary Education Act of 1965....................... 300,000
(2) From a special State program for educationally deprived
children.................................................. 200,000
(3) From a grant under part B.............................. 200,000
(4) From State funds for the education of children with
disabilities.............................................. 500,000
(5) From a locally-funded program for children with
disabilities.............................................. 250,000
(6) From a grant for a bilingual education program under
title VII of the Elementary and Secondary Education Act of
1965...................................................... 150,000
------------
Total.................................................. 1,600,000
(An LEA would also include any other funds it spent from Federal,
State, or local sources for the three basic purposes: Children with
disabilities, educationally deprived children, and bilingual education
for limited English proficient children.)
This amount is subtracted from the LEA's total expenditure for
elementary school students computed above:
$10,000,000
-1,600,000
-------------
8,400,000
c. The LEA next must divide by the average number of students
enrolled in the elementary schools of the agency last year (including
its students with disabilities).
Example: Last year, an average of 7,000 students were enrolled in
the agency's elementary schools. This must be divided into the amount
computed under the above paragraph: $8,400,000/7,000 students = $1,200/
student.
This figure is in the minimum amount the LEA must spend (on the
average) for the education of each of its students with disabilities.
Funds under part B may be used only for costs over and above this
minimum. In this example, if the LEA has 100 elementary school students
with disabilities, it must keep records adequate to show that it has
spent at least $120,000 for the education of those students (100
students times $1,200/student), not including capital outlay and debt
service.
This $120,000 may come from any funds except funds under part B,
subject to any legal requirements that govern the use of those other
funds.
If the LEA has secondary school students with disabilities, it must
do the same computation for them. However the amounts used in the
computation would be those the LEA spent last year for the education of
secondary school students, rather than for elementary school students.
Sec. 300.185 Computation of excess costs--consolidated application.
The minimum average amount under Sec. 300.183, if two or more LEAs
submit a consolidated application, 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. 1414(a)(1))
[[Page 29]]
Sec. 300.186 Excess costs--limitation on use of part B funds.
(a) 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 (b) of this section.
(b) 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 age ranges three,
four, five, eighteen, nineteen, twenty, or twenty-one, 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.
(Authority: 20 U.S.C. 1402(20); 1414(a)(1))
Sec. 300.187-300.189 [Reserved]
Sec. 300.190 Consolidated applications.
(a) [Reserved]
(b) Required applications. An SEA may require LEAs to submit a
consolidated application for payments under part B of the Act if the SEA
determines that an individual application submitted by an LEA will be
disapproved because--
(1) The agency's entitlement is less than the $7,500 minimum
required by section 611(c)(4)(A)(i) of the Act (Sec. 300.360(a)(1)); or
(2) The agency is unable to establish and maintain programs of
sufficient size and scope to effectively meet the educational needs of
children with disabilities.
(c) Size and scope of program. The SEA shall establish standards and
procedures for determinations under paragraph (b)(2) of this section.
(Authority: 20 U.S.C. 1414(c)(1))
Sec. 300.191 [Reserved]
Sec. 300.192 State regulation of consolidated applications.
(a) The SEA shall issue regulations with respect to consolidated
applications submitted under this part.
(b) The SEA's regulations must--
(1) Be consistent with sections 612(1)-(7) and 613(a) of the Act;
and
(2) Provide participating LEAs with joint responsibilities for
implementing programs receiving payments under this part.
(Authority: 20 U.S.C. 1414(c)(2)(B))
(c) If an IEU is required by State law to carry out this part, the
joint responsibilities given to LEAs under paragraph (b)(2) of this
section do not apply to the administration and disbursement of any
payments received by the IEU. Those administrative responsibilities must
be carried out exclusively by the IEU.
(Authority: 20 U.S.C. 1414(c)(2)(C))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.193 State educational agency approval; disapproval.
(a)-(b) [Reserved]
(c) In carrying out its functions under this section, each SEA shall
consider any decision resulting from a hearing under Secs. 300.506-
300.513 that is adverse to the LEA involved in the decision.
(Authority: 20 U.S.C. 1414(b)(3))
Sec. 300.194 Withholding.
(a) If an SEA, after giving reasonable notice and an opportunity for
a hearing to an LEA, decides that the LEA in the administration of an
application approved by the SEA has failed to comply with any
requirement in the application, the SEA, after giving notice to the LEA,
shall--
(1) Make no further payments to the LEA until the SEA is satisfied
that there is no longer any failure to comply with the requirement; or
(2) Consider its decision in its review of any application made by
the LEA under Sec. 300.180; or
(3) Both.
(b) [Reserved]
(Authority: 20 U.S.C. 1414(b)(2))
[[Page 30]]
Local Educational Agency Applications--Contents
Sec. 300.220 Child identification.
Each application must include procedures that ensure that all
children residing within the jurisdiction of the LEA who have
disabilities, regardless of the severity of their disability, and who
are in need of special education and related services, are identified,
located, and evaluated, including a practical method for determining
which children are currently receiving needed special education and
related services and which children are not currently receiving needed
special education and related services.
(Authority: 20 U.S.C. 1414(a)(1)(A))
Note: The LEA is responsible for ensuring that all children with
disabilities within its jurisdiction are identified, located, and
evaluated, including children in all public and private agencies and
institutions within that jurisdiction. Collection and use of data are
subject to the confidentiality requirements of Secs. 300.560-300.576.
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.221 Confidentiality of personally identifiable information.
Each application must include policies and procedures that ensure
that the criteria in Secs. 300.560-300.574 are met.
(Authority: 20 U.S.C. 1414(a)(1)(B))
Sec. 300.222 Full educational opportunity goal--timetable.
Each application must--
(a) Include a goal of providing full educational opportunity to all
children with disabilities, aged birth through 21; and
(b) Include a detailed timetable for accomplishing the goal.
(Authority: 20 U.S.C. 1414(a)(1)(C), (D))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.223 Facilities, personnel, and services.
Each application must provide a description of the kind and number
of facilities, personnel, and services necessary to meet the goal in
Sec. 300.222.
(Authority: 20 U.S.C. 1414(a)(1)(E))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.224 Personnel development.
Each application must include procedures for the implementation and
use of the comprehensive system of personnel development established by
the SEA under Sec. 300.139.
(Authority: 20 U.S.C. 1414(a)(1)(C)(i))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.225 Priorities.
Each application must include priorities that meet the requirements
of Secs. 300.320-300.324.
(Authority: 20 U.S.C. 1414(a)(1)(C)(ii))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.226 Parent involvement.
Each application must include procedures to ensure that, in meeting
the goal under Sec. 300.222, the LEA makes provision for participation
of and consultation with parents or guardians of children with
disabilities.
(Authority: 20 U.S.C. 1414(a)(1)(C)(iii))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
[[Page 31]]
Sec. 300.227 Participation in regular education programs.
(a) Each application must include procedures to ensure that to the
maximum extent practicable, and consistent with Secs. 300.550-300.553,
the LEA provides special services to enable children with disabilities
to participate in regular educational programs.
(b) Each application must describe--
(1) The types of alternative placements that are available for
children with disabilities; and
(2) The number of children with disabilities within each disability
category who are served in each type of placement.
(Authority: 20 U.S.C. 1414(a)(1)(C)(iv))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.228 [Reserved]
Sec. 300.229 Excess cost.
Each application must provide assurance satisfactory to the SEA that
the LEA uses funds provided under part B of the Act only for costs that
exceed the amount computed under Sec. 300.184 and that are directly
attributable to the education of children with disabilities.
(Authority: 20 U.S.C. 1414(a)(2)(B))
Sec. 300.230 Nonsupplanting.
(a) Each application must provide assurance satisfactory to the SEA
that the LEA uses funds provided under part B of the Act to supplement
and, to the extent practicable, increase the level of State and local
funds expended for the education of children with disabilities, and in
no case to supplant those State and local funds.
(b) To meet the requirement in paragraph (a) of this section, the
total amount or average per capita amount of State and local school
funds budgeted by the LEA for expenditures in the current fiscal year
for the education of children with disabilities must be at least equal
to the total amount or average per capita amount of State and local
school funds actually expended for the education of children with
disabilities in the most recent preceding fiscal year for which the
information is available. Allowance may be made for--
(1) Decreases in enrollment of children with disabilities; and
(2) Unusually large amounts of funds expended for such long-term
purposes as the acquisition of equipment and the construction of school
facilities.
(Authority: 20 U.S.C. 1414(a)(2)(B))
Sec. 300.231 Comparable services.
(a) Each application must provide assurance satisfactory to the SEA
that the LEA meets the requirements of this section.
(b) An LEA may not use funds under part B of the Act to provide
services to children with disabilities unless the LEA uses State and
local funds to provide services to those children that, taken as a
whole, are at least comparable to services provided to other children
with disabilities in that LEA.
(c) Each LEA shall maintain records that show that the LEA meets the
requirement in paragraph (b) of this section.
(Authority: 20 U.S.C. 1414(a)(2)(C))
Note: Under the ``comparability'' requirement, if State and local
funds are used to provide certain services, those services must be
provided with State and local funds to all children with disabilities in
the LEA who need them. Part B funds may then be used to supplement
existing services, or to provide additional services to meet special
needs. This, of course, is subject to the other requirements of the Act,
including the priorities under Secs. 300.320-300.324.
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
[[Page 32]]
Sec. 300.232-300.234 [Reserved]
Sec. 300.235 Individualized education programs.
Each application must include procedures to assure that the LEA
complies with Secs. 300.340-300.350.
(Authority: 20 U.S.C. 1414(a)(5))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.236 [Reserved]
Sec. 300.237 Procedural safeguards.
Each application must provide assurance satisfactory to the SEA that
the LEA has procedural safeguards that meet the requirements of
Secs. 300.500-300.515.
(Authority: 20 U.S.C. 1414(a)(7))
Sec. 300.238 Use of part B funds.
Each application must describe how the LEA will use the funds under
part B of the Act during the next school year.
(Authority: 20 U.S.C. 1414(a))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.239 [Reserved]
Sec. 300.240 Other requirements.
Each local application must include additional procedures and
information that the SEA may require in order to meet the State plan
requirements of Secs. 300.121-300.153.
(Authority: 20 U.S.C. 1414(a)(6))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Application From Secretary of the Interior
Sec. 300.260 Submission of application; approval.
(a) In order to receive a grant under this part, the Secretary of
the Interior shall submit an application that--
(1) Meets the requirements of section 612(1), 612(2)(C)-(E), 612(4),
612(5), 612(6), and 612(7) of the Act (including monitoring and
evaluation activities);
(2) Meets the requirements of section 613(a), (2), (3), (4)(B), (5),
(6), (7), (10), (11), (12), (13), (14), and (15), 613(b), and 613(e) of
the Act;
(3) Meets the requirements of section 614(a)(1)(A)-(B), (2)(A), (C),
(3), (4), (5), and (7) of the Act;
(4) Meets the requirements of this part that implement the sections
of the Act listed in paragraphs (a)(1)-(3) of this section.
(5) Includes a description of how the Secretary of the Interior will
coordinate the provision of services under this part with LEAs, tribes
and tribal organizations, and other private and Federal service
providers;
(6) Includes an assurance that there are public hearings, adequate
notice of such 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
required under paragraphs (a)(1)-(3) of this section;
(7) Includes an assurance that the Secretary of the Interior will
provide such information as the Secretary may require to comply with
section 618(b)(1) of the Act, including data on the number of children
and youth with disabilities served and the types and amounts of services
provided and needed;
(8) Includes an assurance that, by October 1, 1992, the Secretaries
of the Interior and Health and Human Services will enter 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 SEAs and LEAs and
other entities to facilitate the provision of services to Indian
children with disabilities residing on or near reservations. That
agreement must provide for
[[Page 33]]
the apportionment of responsibilities and costs, including, but not
limited to, those related to child find, evaluation, diagnosis,
remediation or therapeutic measures, and (where appropriate) equipment
and medical or personal supplies, or both, as needed for a child to
remain in school or a program; and
(9) Includes an assurance that the Department of the Interior will
cooperate with the Department of Education in the latter's exercise of
monitoring and oversight of this application, and any agreements entered
into between the Secretary of the Interior and other entities under the
Act and will fulfill its duties under the Act.
(b) Sections 300.581-300.585 apply to grants available to the
Secretary of the Interior under this part.
(Authority: 20 U.S.C. 1411(f))
Sec. 300.261 Public participation.
In the development of the application for the Department of the
Interior, the Secretary of the Interior shall provide for public
participation consistent with Secs. 300.280-300.284.
(Authority: 20 U.S.C. 1411(f))
Sec. 300.262 Use of part B funds.
(a)(1) The Department of the Interior may use five percent of its
payment under Sec. 300.709 in any fiscal year, or $350,000, whichever is
greater, for administrative costs in carrying out the provisions of this
part.
(2) The remainder of the payments to the Secretary of the Interior
under Sec. 300.709 in any fiscal year must be used in accordance with
the priorities under Secs. 300.320-300.324.
(b) Payments to the Secretary of the Interior under Sec. 300.710
must be used in accordance with that section.
(Authority: 20 U.S.C. 1411(f))
Sec. 300.263 Applicable regulations.
The Secretary of the Interior shall comply with the requirements of
Secs. 300.301-300.303, Secs. 300.305-300.307, and Secs. 300.340-300.347,
Sec. 300.350, Secs. 300.360-300.383, Secs. 300.400-300.402,
Secs. 300.500-300.585, Secs. 300.600-300.621, and Secs. 300.660-300.662.
(Authority: 20 U.S.C. 1411(f)(2))
Public Participation
Sec. 300.280 Public hearings before adopting a State plan.
Prior to its adoption of a State plan, the SEA shall--
(a) Make the plan available to the general public;
(b) Hold public hearings; and
(c) Provide an opportunity for comment by the general public on the
plan.
(Authority: 20 U.S.C. 1412(7))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.281 Notice.
(a) The SEA shall provide notice to the general public of the public
hearings.
(b) The notice must be in sufficient detail to inform the general
public about--
(1) The purpose and scope of the State plan and its relation to part
B of the Act;
(2) The availability of the State plan;
(3) The date, time, and location of each public hearing;
(4) The procedures for submitting written comments about the plan;
and
(5) The timetable for developing the final plan and submitting it 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(7))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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
[[Page 34]]
State a reasonable opportunity to participate.
(b) The plan 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(7))
Sec. 300.283 Review of public comments before adopting plan.
Before adopting its State plan, the SEA shall--
(a) Review and consider all public comments; and
(b) Make any necessary modifications in the plan.
(Authority: 20 U.S.C. 1412(7))
Sec. 300.284 Publication and availability of approved plan.
After the Secretary approves a State plan, the SEA shall give notice
in newspapers or other media, or both, that the plan is approved. The
notice must name places throughout the State where the plan is available
for access by any interested person.
(Authority: 20 U.S.C. 1412(7))
(Approved by the Office of Management and Budget under control number
1820-0600)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Subpart C--Services
Free Appropriate Public Education
Sec. 300.300 Timelines for free appropriate public education.
(a) General. Each State shall ensure that FAPE is available to all
children with disabilities aged 3 through 18 within the State not later
than September 1, 1978, and to all children with disabilities aged 3
through 21 within the State not later than September 1, 1980.
(b) Age ranges 3-5 and 18-21. This paragraph provides rules for
applying the requirement in paragraph (a) of this section to children
with disabilities aged 3, 4, 5, 18, 19, 20, and 21:
(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 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 reservations. With the exception
of children identified in Sec. 300.709(a)(1) and (2), the SEA shall be
responsible for ensuring that all of the requirements of part B of the
Act are implemented for all children aged 3 through 21 on reservations.
(Authority: 20 U.S.C. 1411(f); 1412(2)(B); S. Rep. No. 94-168, p. 19
(1975))
Note 1: The requirement to make FAPE available applies to all
children with disabilities within the State who are in the age ranges
required under Sec. 300.300 and who need special education and related
services. This includes children with disabilities already in school and
children with less severe disabilities, who are not covered under the
priorities under Sec. 300.321.
[[Page 35]]
Note 2: In order to be in compliance with Sec. 300.300, each State
must ensure that the requirement to identify, locate, and evaluate all
children with disabilities is fully implemented by public agencies
throughout the State. This means that before September 1, 1978, every
child who has been referred or is on a waiting list for evaluation
(including children in school as well as those not receiving an
education) must be evaluated in accordance with Secs. 300.530-300.533.
If, as a result of the evaluation, it is determined that a child needs
special education and related services, an IEP must be developed for the
child by September 1, 1978, and all other applicable requirements of
this part must be met.
Note 3: The requirement to identify, locate, and evaluate children
with disabilities (commonly referred to as the ``child find system'')
was enacted on August 21, 1974, under Pub. L. 93-380. While each State
needed time to establish and implement its child find system, the four
year period between August 21, 1974, and September 1, 1978, is
considered to be sufficient to ensure that the system is fully
operational and effective on a State-wide basis.
Under the statute, the age range for the child find requirement (0-
21) is greater than the mandated age range for providing FAPE. One
reason for the broader age requirement under ``child find'' is to enable
States to be aware of and plan for younger children who will require
special education and related services. It also ties in with the full
educational opportunity goal requirement that has the same age range as
child find. Moreover, while a State is not required to provide FAPE to
children with disabilities below the age ranges mandated under
Sec. 300.300, the State may, at its discretion, extend services to those
children, subject to the priority requirements of Secs. 300.320-300.324.
Sec. 300.301 Free appropriate public education--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, when it is necessary to place a child with a
disability in a residential facility, a State could use joint agreements
between the agencies involved for sharing the cost of that placement.
(b) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or to pay for services
provided to a child with a disability.
(Authority: 20 U.S.C. 1401 (18); 1412(2)(B))
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(2)(B); 1413(a)(4)(B))
Note: This requirement applies to placements that are made by public
agencies for educational purposes, and includes placements in State-
operated schools for children with disabilities, such as a State school
for students with deafness or students with blindness.
Sec. 300.303 Proper functioning of hearing aids.
Each public agency shall ensure that the hearing aids worn by
children with hearing impairments including deafness in school are
functioning properly.
(Authority: 20 U.S.C. 1412(2)(B))
Note: The report of the House of Representatives on the 1978
appropriation bill includes the following statement regarding hearing
aids:
In its report on the 1976 appropriation bill the Committee expressed
concern about the condition of hearing aids worn by children in public
schools. A study done at the Committee's direction by the Bureau of
Education for the Handicapped reveals that up to one-third of the
hearing aids are malfunctioning. Obviously, the Committee expects the
Office of Education will ensure that hearing impaired school children
are receiving adequate professional assessment, follow-up and services.
(Authority: H. R. Rep. No. 95-381, p. 67 (1977))
Sec. 300.304 Full educational opportunity goal.
(a) 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.
(b) Subject to the priority requirements of Secs. 300.320-300.324,
an SEA or LEA may use part B funds to provide facilities, personnel, and
services necessary to meet the full educational opportunity goal.
(Authority: 20 U.S.C. 1412(2)(A); 1414(a)(1)(C))
Note: In meeting the full educational opportunity goal, the Congress
also encouraged
[[Page 36]]
LEAs to include artistic and cultural activities in programs supported
under this part, subject to the priority requirements of Secs. 300.320-
300.324. This point is addressed in the following statements from the
Senate Report on Public Law 94-142:
The use of the arts as a teaching tool for the handicapped has long
been recognized as a viable, effective way not only of teaching special
skills, but also of reaching youngsters who had otherwise been
unteachable. The Committee envisions that programs under this bill could
well include an arts component and, indeed, urges that local educational
agencies include the arts in programs for the handicapped funded under
this Act. Such a program could cover both appreciation of the arts by
the handicapped youngsters, and the utilization of the arts as a
teaching tool per se.
Museum settings have often been another effective tool in the
teaching of handicapped children. For example, the Brooklyn Museum has
been a leader in developing exhibits utilizing the heightened tactile
sensory skill of the blind. Therefore, in light of the national policy
concerning the use of museums in federally supported education programs
enunciated in the Education Amendments of 1974, the Committee also urges
local educational agencies to include museums in programs for the
handicapped funded under this Act.
(Authority: S. Rep. No. 94-168, p. 13 (1975))
Sec. 300.305 Program options.
Each public agency shall take steps to ensure that its children with
disabilities have available to them the variety of educational programs
and services available to nondisabled children in the area served by the
agency, including art, music, industrial arts, consumer and homemaking
education, and vocational education.
(Authority: 20 U.S.C. 1412(2)(A); 1414(a)(1)(C))
Note: The above list of program options is not exhaustive, and could
include any program or activity in which nondisabled students
participate.
Sec. 300.306 Nonacademic services.
(a) Each public agency shall take steps to provide nonacademic and
extracurricular services and activities in such manner as is necessary
to afford children with disabilities an equal opportunity for
participation in those services and activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health services,
recreational activities, special interest groups or clubs sponsored by
the public agency, referrals to agencies that provide assistance to
individuals with disabilities, and employment of students, including
both employment by the public agency and assistance in making outside
employment available.
(Authority: 20 U.S.C. 1412(2)(A); 1414(a)(1)(C))
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. 1401(a)(16); 1412(5)(B); 1414(a)(6))
Note: The Report of the House of Representatives on Public Law 94-
142 includes the following statement regarding physical education:
Special education as set forth in the Committee bill includes
instruction in physical education, which is provided as a matter of
course to all non-handicapped children enrolled in public elementary and
secondary schools. The Committee is concerned that although these
services are available to and required of all children in our school
systems,
[[Page 37]]
they are often viewed as a luxury for handicapped children.
* * * * *
The Committee expects the Commissioner of Education to take whatever
action is necessary to assure that physical education services are
available to all handicapped children, and has specifically included
physical education within the definition of special education to make
clear that the Committee expects such services, specially designed where
necessary, to be provided as an integral part of the educational program
of every handicapped child.
(Authority: H. R. Rep. No. 94-332, p. 9 (1975))
Sec. 300.308 Assistive technology.
Each public agency shall ensure that assistive technology devices or
assistive technology services, or both, as those terms are defined in
Secs. 300.5-300.6, are made available to a child with a disability if
required as a part of the child's--
(a) Special education under Sec. 300.17;
(b) Related services under Sec. 300.16; or
(c) Supplementary aids and services under Sec. 300.550(b)(2).
(Authority: 20 U.S.C. 1412(2), (5)(B))
Priorities in the Use of Part B Funds
Sec. 300.320 Definitions of ``first priority children'' and ``second priority children.''
For the purposes of Secs. 300.321-300.324, the term:
(a) First priority children means children with disabilities who--
(1) Are in an age group for which the State must make FAPE available
under Sec. 300.300; and
(2) Are not receiving any education.
(b) Second priority children means children with disabilities,
within each disability category, with the most severe disabilities who
are receiving an inadequate education.
(Authority: 20 U.S.C. 1412(3))
Note 1: After September 1, 1978, there should be no second priority
children, since States must ensure, as a condition of receiving part B
funds for fiscal year 1979, that all children with disabilities will
have FAPE available by that date.
Note 2: The term free appropriate public education, as defined in
Sec. 300.8, means special education and related services that * * *
``are provided in conformity with an IEP'' * * *.
New first priority children will continue to be found by the State after
September 1, 1978 through on-going efforts to identify, locate, and
evaluate all children with disabilities.
Sec. 300.321 Priorities.
(a) Each SEA and LEA shall use funds provided under part B of the
Act in the following order of priorities:
(1) To provide FAPE to first priority children, including the
identification, location, and evaluation of first priority children.
(2) To provide FAPE to second priority children, including the
identification, location, and evaluation of second priority children.
(3) To meet the other requirements of this part.
(b) The requirements of paragraph (a) of this section do not apply
to funds that the State uses for administration under Sec. 300.620.
(Authority: 20 U.S.C. 1411 (b)(1)(B), (b)(2)(B), (c)(1)(B),
(c)(2)(A)(ii))
Note: SEAs as well as LEAs must use part B funds (except the portion
used for State administration) for the priorities. A State may have to
set aside a portion of its part B allotment to be able to serve newly
identified first priority children.
After September 1, 1978, part B funds may be used--
(1) To continue supporting child identification, location, and
evaluation activities;
(2) To provide FAPE to newly identified first priority children;
(3) To meet the full educational opportunity goal required under
Sec. 300.304, including employing additional personnel and providing
inservice training, in order to increase the level, intensity and
quality of services provided to individual children with disabilities;
and
(4) To meet the other requirements of part B.
Sec. 300.322 [Reserved]
Sec. 300.323 Services to other children.
If a State or an LEA is providing FAPE to all of its first priority
children, that State or LEA may use funds provided under part B of the
Act--
[[Page 38]]
(a) To provide FAPE to children with disabilities who are not
receiving any education and who are in the age groups not covered under
Sec. 300.300 in that State; or
(b) To provide FAPE to second priority children; or
(c) Both.
(Authority: 20 U.S.C. 1411 (b)(1)(B), (b)(2)(B), (c)(2)(A)(ii))
Sec. 300.324 Application of local educational agency to use funds for the second priority.
An LEA may use funds provided under part B of the Act for second
priority children, if it provides assurance satisfactory to the SEA in
its application (or an amendment to its application)--
(a) That all first priority children have FAPE available to them;
(b) That the LEA has a system for the identification, location, and
evaluation of children with disabilities, as described in its
application; and
(c) That whenever a first priority child is identified, located, and
evaluated, the LEA makes FAPE available to the child.
(Authority: 20 U.S.C. 1411 (b)(1)(B), (c)(1)(B); 1414(a)(1)(C)(ii))
Individualized Education Programs
Sec. 300.340 Definitions.
(a) As used in this part, the term individualized education program
means a written statement for a child with a disability that is
developed and implemented in accordance with Secs. 300.341-300.350.
(b) As used in Secs. 300.346 and 300.347, 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(a)(20))
Sec. 300.341 State educational agency responsibility.
(a) Public agencies. The SEA shall ensure that each public agency
develops and implements an IEP for each of its children with
disabilities.
(b) Private schools and facilities. The SEA shall ensure that an IEP
is developed and implemented for each child with a disability who--
(1) Is placed in or referred to a private school or facility by a
public agency; or
(2) Is enrolled in a parochial school or other private school and
receives special education or related services from a public agency.
(Authority: 20 U.S.C. 1412 (4), (6); 1413(a)(4))
Note: This section applies to all public agencies, including other
State agencies (e.g., departments of mental health and welfare) that
provide special education to a child with a disability either directly,
by contract or through other arrangements. Thus, if a State welfare
agency contracts with a private school or facility to provide special
education to a child with a disability, that agency would be responsible
for ensuring that an IEP is developed for the child.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.342 When individualized education programs must be in effect.
(a) At the beginning of each school year, each public agency shall
have in effect an IEP for every child with a disability who is receiving
special education from that agency.
(b) An IEP must--
(1) Be in effect before special education and related services are
provided to a child; and
(2) Be implemented as soon as possible following the meetings under
Sec. 300.343.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5); Pub. L. 94-142,
sec. 8(c) (1975))
Note: Under paragraph (b)(2) of this section, it is expected that
the IEP of a child with a disability will be implemented immediately
following the meetings under Sec. 300.343. An exception to this would be
(1) when the meetings occur during the summer or a vacation period, or
(2) where there are circumstances that require a short delay (e.g.,
working out transportation arrangements). However, there can be no undue
delay in providing special education and related services to the child.
[[Page 39]]
Sec. 300.343 Meetings.
(a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing, and
revising the IEP of a child with a disability (or, if consistent with
State policy and at the discretion of the LEA, and with the concurrence
of the parents, an individualized family service plan described in
section 677(d) of the Act for each child with a disability, aged 3
through 5).
(b) [Reserved]
(c) Timeline. A meeting to develop an IEP for a child must be held
within 30 calendar days of a determination that the child needs special
education and related services.
(d) Review. Each public agency shall initiate and conduct meetings
to review each child's IEP periodically and, if appropriate, revise its
provisions. A meeting must be held for this purpose at least once a
year.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5))
Note: The date on which agencies must have IEPs in effect is
specified in Sec. 300.342 (the beginning of each school year). However,
except for new children with disabilities (i.e., those evaluated and
determined to need special education and related services for the first
time), the timing of meetings to develop, review, and revise IEPs is
left to the discretion of each agency.
In order to have IEPs in effect at the beginning of the school year,
agencies could hold meetings either at the end of the preceding school
year or during the summer prior to the next school year. Meetings may be
held any time throughout the year, as long as IEPs are in effect at the
beginning of each school year.
The statute requires agencies to hold a meeting at least once each
year in order to review and, if appropriate, revise each child's IEP.
The timing of those meetings could be on the anniversary date of the
child's last IEP meeting, but this is left to the discretion of the
agency.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.344 Participants in meetings.
(a) General. The public agency shall ensure that each meeting
includes the following participants:
(1) A representative of the public agency, other than the child's
teacher, who is qualified to provide, or supervise the provision of,
special education.
(2) The child's teacher.
(3) One or both of the child's parents, subject to Sec. 300.345.
(4) The child, if appropriate.
(5) Other individuals at the discretion of the parent or agency.
(b) Evaluation personnel. For a child with a disability who has been
evaluated for the first time, the public agency shall ensure--
(1) That a member of the evaluation team participates in the
meeting; or
(2) That the representative of the public agency, the child's
teacher, or some other person is present at the meeting, who is
knowledgeable about the evaluation procedures used with the child and is
familiar with the results of the evaluation.
(c) Transition services participants. (1) If a purpose of the
meeting is the consideration of transition services for a student, the
public agency shall invite--
(i) The student; and
(ii) A representative of any other agency that is likely to be
responsible for providing or paying for transition services.
(2) If the student does not attend, the public agency shall take
other steps to ensure that the student's preferences and interests are
considered; and
(3) If an agency invited to send a representative to a meeting does
not do so, the public agency shall take other steps to obtain the
participation of the other agency in the planning of any transition
services.
(Authority: 20 U.S.C. 1401(a)(19), (a)(20); 1412(2)(B), (4), (6);
1414(a)(5))
Note 1: In deciding which teacher will participate in meetings on a
child's IEP, the agency may wish to consider the following
possibilities:
(a) For a child with a disability who is receiving special
education, the teacher could be the child's special education teacher.
If the child's disability is a speech impairment, the teacher could be
the speech-language pathologist.
(b) For a child with a disability who is being considered for
placement in special education, the teacher could be the child's regular
teacher, or a teacher qualified to
[[Page 40]]
provide education in the type of program in which the child may be
placed, or both.
(c) If the child is not in school or has more than one teacher, the
agency may designate which teacher will participate in the meeting.
Either the teacher or the agency representative should be qualified
in the area of the child's suspected disability.
For a child whose primary disability is a speech or language
impairment, the evaluation personnel participating under paragraph
(b)(1) of this section would normally be the speech-language
pathologist.
Note 2: Under paragraph (c) of this section, the public agency is
required to invite each student to participate in his or her IEP
meeting, if a purpose of the meeting is the consideration of transition
services for the student. For all students who are 16 years of age or
older, one of the purposes of the annual meeting will always be the
planning of transition services, since transition services are a
required component of the IEP for these students.
For a student younger than age 16, if transition services are
initially discussed at a meeting that does not include the student, the
public agency is responsible for ensuring that, before a decision about
transition services for the student is made, a subsequent IEP meeting is
conducted for that purpose, and the student is invited to the meeting.
Sec. 300.345 Parent participation.
(a) Each public agency shall take steps to ensure that one or both
of the parents of the child with a disability are present at each
meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b)(1) The notice under paragraph (a)(1) of this section must
indicate the purpose, time, and location of the meeting and who will be
in attendance;
(2) If a purpose of the meeting is the consideration of transition
services for a student, the notice must also--
(i) Indicate this purpose;
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(c) If neither parent can attend, the public agency shall use other
methods to ensure parent participation, including individual or
conference telephone calls.
(d) A meeting may be conducted without a parent in attendance if the
public agency is unable to convince the parents that they should attend.
In this case the public agency must have a record of its attempts to
arrange a mutually agreed on time and place such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(e) The public agency shall take whatever action is necessary to
ensure that the parent understands the proceedings at a meeting,
including arranging for an interpreter for parents with deafness or
whose native language is other than English.
(f) The public agency shall give the parent, on request, a copy of
the IEP.
(Authority: 20 U.S.C. 1401(a)(20); 1412 (2)(B), (4), (6); 1414(a)(5))
Note: The notice in paragraph (a) of this section could also inform
parents that they may bring other people to the meeting. As indicated in
paragraph (c) of this section, the procedure used to notify parents
(whether oral or written or both) is left to the discretion of the
agency, but the agency must keep a record of its efforts to contact
parents.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.346 Content of individualized education program.
(a) General. The IEP for each child must include--
(1) A statement of the child's present levels of educational
performance;
(2) A statement of annual goals, including short-term instructional
objectives;
(3) A statement of the specific special education and related
services to be provided to the child and the extent that the child will
be able to participate in regular educational programs;
[[Page 41]]
(4) The projected dates for initiation of services and the
anticipated duration of the services; and
(5) Appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether the
short term instructional objectives are being achieved.
(b) Transition services. (1) The IEP for each student, beginning no
later than age 16 (and at a younger age, if determined appropriate),
must include a statement of the needed transition services as defined in
Sec. 300.18, including, if appropriate, a statement of each public
agency's and each participating agency's responsibilities or linkages,
or both, before the student leaves the school setting.
(2) If the IEP team determines that services are not needed in one
or more of the areas specified in Sec. 300.18 (b)(2)(i) through
(b)(2)(iii), the IEP must include a statement to that effect and the
basis upon which the determination was made.
(Authority: 20 U.S.C. 1401 (a)(19), (a)(20); 1412 (2)(B), (4), (6);
1414(a)(5))
Note 1: The legislative history of the transition services
provisions of the Act suggests that the statement of needed transition
services referred to in paragraph (b) of this section should include a
commitment by any participating agency to meet any financial
responsibility it may have in the provision of transition services. See
House Report No. 101-544, p. 11 (1990).
Note 2: With respect to the provisions of paragraph (b) of this
section, it is generally expected that the statement of needed
transition services will include the areas listed in Sec. 300.18
(b)(2)(i) through (b)(2)(iii). If the IEP team determines that services
are not needed in one of those areas, the public agency must implement
the requirements in paragraph (b)(2) of this section. Since it is a part
of the IEP, the IEP team must reconsider its determination at least
annually.
Note 3: Section 602(a)(20) of the Act provides that IEPs must
include a statement of needed transition services for students beginning
no later than age 16, but permits transition services to students below
age 16 (i.e., ``* * * and, when determined appropriate for the
individual, beginning at age 14 or younger.''). Although the statute
does not mandate transition services for all students beginning at age
14 or younger, the provision of these services could have a
significantly positive effect on the employment and independent living
outcomes for many of these students in the future, especially for
students who are likely to drop out before age 16. With respect to the
provision of transition services to students below age 16, the Report of
the House Committee on Education and Labor on Public Law 101-476
includes the following statement:
Although this language leaves the final determination of when to
initiate transition services for students under age 16 to the IEP
process, it nevertheless makes clear that Congress expects consideration
to be given to the need for transition services for some students by age
14 or younger. The Committee encourages that approach because of their
concern that age 16 may be too late for many students, particularly
those at risk of dropping out of school and those with the most severe
disabilities. Even for those students who stay in school until age 18,
many will need more than two years of transitional services. Students
with disabilities are now dropping out of school before age 16, feeling
that the education system has little to offer them. Initiating services
at a younger age will be critical. (House Report No. 101-544, 10
(1990).)
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.347 Agency responsibilities for transition services.
(a) If a participating agency fails to provide agreed-upon
transition services contained in the IEP of a student with a disability,
the public agency responsible for the student's education shall, as soon
as possible, initiate a meeting for the purpose of identifying
alternative strategies to meet the transition objectives and, if
necessary, revising the student's IEP.
(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. 1401 (a)(18), (a)(19), (a)(20); 1412(2)(B))
Sec. 300.348 Private school placements by public agencies.
(a) Developing individualized education programs. (1) Before a
public agency places a child with a disability in, or
[[Page 42]]
refers a child to, a private school or facility, the agency shall
initiate and conduct a meeting to develop an IEP for the child in
accordance with Sec. 300.343.
(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.
(3) [Reserved]
(b) Reviewing and revising individualized education programs. (1)
After a child with a disability enters a private school or facility, any
meetings to review and revise the child's IEP may be initiated and
conducted by the private school or facility at the discretion of the
public agency.
(2) If the private school or facility initiates and conducts these
meetings, the public agency shall ensure that the parents and an agency
representative:
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the program before those
changes are implemented.
(c) Responsibility. Even if a private school or facility implements
a child's IEP, responsibility for compliance with this part remains with
the public agency and the SEA.
(Authority: 20 U.S.C. 1413(a)(4)(B))
Sec. 300.349 Children with disabilities in parochial or other private schools.
If a child with a disability is enrolled in a parochial or other
private school and receives special education or related services from a
public agency, the public agency shall--
(a) Initiate and conduct meetings to develop, review, and revise an
IEP for the child, in accordance with Sec. 300.343; and
(b) Ensure that a representative of the parochial or other private
school attends each meeting. If the representative cannot attend, the
agency shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 20 U.S.C. 1413(a)(4)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.350 Individualized education program--accountability.
Each public agency must provide special education and related
services to a child with a disability in accordance with an IEP.
However, part B of the Act does not require that any agency, teacher, or
other person be held accountable if a child does not achieve the growth
projected in the annual goals and objectives.
(Authority: 20 U.S.C. 1412(2)(B); 1414(a) (5), (6); Cong. Rec. at H7152
(daily ed., July 21, 1975))
Note: This section is intended to relieve concerns that the IEP
constitutes a guarantee by the public agency and the teacher that a
child will progress at a specified rate. However, this section does not
relieve agencies and teachers from making good faith efforts to assist
the child in achieving the goals and objectives listed in the IEP.
Further, the section does not limit a parent's right to complain and ask
for revisions of the child's program, or to invoke due process
procedures, if the parent feels that these efforts are not being made.
Direct Service by the State Educational Agency
Sec. 300.360 Use of local educational agency allocation for direct services.
(a) An SEA may not distribute funds to an LEA, and shall use those
funds to ensure the provision of FAPE to children with disabilities
residing in the area served by the LEA, if the LEA, in any fiscal year--
(1) Is entitled to less than $7,500 for that fiscal year (beginning
with fiscal year 1979);
(2) Does not submit an application that meets the requirements of
Secs. 300.220-300.240;
(3) Is unable or unwilling to establish and maintain programs of
FAPE;
(4) Is unable or unwilling to be consolidated with other LEAs in
order to
[[Page 43]]
establish and maintain those programs; or
(5) Has one or more children with disabilities who can best be
served by a regional or State center designed to meet the needs of those
children.
(b) In meeting the requirements in paragraph (a) of this section,
the SEA may provide special education and related services directly, by
contract, or through other arrangements.
(c) The excess cost requirements of Secs. 300.182-300.186 do not
apply to the SEA.
(Authority: 20 U.S.C. 1411(c)(4); 1413(b); 1414(d))
Note: Section 300.360 is a combination of three provisions in the
statute (Sections 611(c)(4), 613(b), and 614(d)). This section focuses
mainly on the State's administration and use of local entitlements under
part B.
The SEA, as a recipient of part B funds, is responsible for ensuring
that all public agencies in the State comply with the provisions of the
Act, regardless of whether they receive part B funds. If an LEA elects
not to apply for its part B entitlement, the State would be required to
use those funds to ensure that FAPE is made available to children
residing in the area served by that local agency. However, if the local
entitlement is not sufficient for this purpose, additional State or
local funds would have to be expended in order to ensure that FAPE and
the other requirements of the Act are met.
Moreover, if the LEA is the recipient of any other Federal funds, it
would have to be in compliance with 34 CFR Secs. 104.31-104.39 of the
regulations implementing section 504 of the Rehabilitation Act of 1973.
It should be noted that the term ``FAPE'' has different meanings under
part B and section 504. For example, under part B, FAPE is a statutory
term that requires special education and related services to be provided
in accordance with an IEP. However, under section 504, each recipient
must provide an education that includes services that are ``designed to
meet individual educational needs of handicapped persons as adequately
as the needs of nonhandicapped persons are met * * *'' Those regulations
state that implementation of an IEP, in accordance with part B, is one
means of meeting the FAPE requirement.
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. 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. 1414(d))
Sec. 300.370 Use of State agency allocations.
(a) The State may use the portion of its allocation that it does not
use for administration under Secs. 300.620-300.621--
(1) For support services and direct services in accordance with the
priority requirements of Secs. 300.320-300.324; and
(2) For the administrative costs of the State's monitoring
activities and complaint investigations, to the extent that these costs
exceed the administrative costs for monitoring and complaint
investigations incurred during fiscal year 1985.
(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 of Secs. 300.380-300.383, recruitment
and training of hearing officers and surrogate parents, and public
information and parent training activities relating to FAPE for children
with disabilities.
(Authority: 20 U.S.C. 1411 (b)(2), (c)(2))
Sec. 300.371 State matching.
Beginning with the period July 1, 1978-June 30, 1979, and for each
following fiscal year, the funds that a State uses for direct and
support services under Sec. 300.370 must be matched on a program basis
by the State from funds other than Federal funds. This requirement does
not apply to funds that the State uses under Sec. 300.360.
(Authority: 20 U.S.C. 1411 (c)(2)(B), (c)(4)(B))
Note: The requirement in Sec. 300.371 would be satisfied if the
State can document that the amount of State funds expended for each
major program area (e.g., the comprehensive system of personnel
development) is at least equal to the expenditure of Federal funds in
that program area.
[[Page 44]]
Sec. 300.372 Applicability of nonsupplanting requirement.
Beginning with funds appropriated for fiscal year 1979 and for each
following fiscal year, the requirement in section 613(a)(9) of the Act,
which prohibits supplanting with Federal funds, does not apply to funds
that the State uses from its allocation under Sec. 300.706(a) for
administration, direct services, or support services.
(Authority: 20 U.S.C. 1411(c)(3))
Comprehensive System of Personnel Development
Sec. 300.380 General.
Each State shall--
(a) Develop and implement a comprehensive system of personnel
development that--
(1) Is consistent with the purposes of the Act and with the
comprehensive system of personnel development described in 34 CFR
Sec. 303.360;
(2) Meets the requirements in Secs. 300.381-300.383; and
(3) Is consistent with the provisions on personnel standards in
Sec. 300.153; and
(b) Include in its State plan a description of the personnel
development system required in paragraph (a)(1) of this section.
(Authority: 20 U.S.C. 1413 (a)(3), (a)(14))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.381 Adequate supply of qualified personnel.
Each State plan must include a description of the procedures and
activities the State will undertake to ensure an adequate supply of
qualified personnel (as the term qualified is defined at Sec. 300.15),
including special education and related services personnel and
leadership personnel, necessary to carry out the purposes of this part.
The procedures and activities must include the development, updating,
and implementation of a plan that--
(a) Addresses current and projected special education and related
services personnel needs, including the need for leadership personnel;
and
(b) Coordinates and facilitates efforts among SEA and LEAs,
institutions of higher education, and professional associations to
recruit, prepare, and retain qualified personnel, including personnel
from minority backgrounds, and personnel with disabilities.
(Authority: 20 U.S.C. 1413(a)(3)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.382 Personnel preparation and continuing education.
Each State plan must include a description of the procedures and
activities the State will undertake to ensure that all personnel
necessary to carry out this part are appropriately and adequately
prepared. The procedures and activities must include--
(a) A system for the continuing education of regular and special
education and related services personnel to enable these personnel to
meet the needs of children with disabilities under this part;
(b) Procedures for acquiring and disseminating to teachers,
administrators, and related services personnel significant knowledge
derived from education research and other sources; and
(c) Procedures for adopting, if appropriate, promising practices,
materials, and technology, proven effective through research and
demonstration.
(Authority: 20 U.S.C. 1413(a)(3)(B))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.383 Data system on personnel and personnel development.
(a) General. The procedures and activities required in Secs. 300.381
and 300.382 must include the development and maintenance of a system for
determining, on an annual basis, the data required in paragraphs (b) and
(c) of this section.
(b) Data on qualified personnel. (1) The system required by
paragraph (a) of this section must enable each State to determine, on an
annual basis--
[[Page 45]]
(i) The number and type of personnel, including leadership
personnel, employed in the provision of special education and related
services, by profession or discipline;
(ii) The number and type of personnel who are employed with
emergency, provisional, or temporary certification in each profession or
discipline who do not hold appropriate State certification, licensure,
or other credentials comparable to certification or licensure for that
profession or discipline; and
(iii) The number and type of personnel, including leadership
personnel, in each profession or discipline needed, and a projection of
the numbers of those personnel that will be needed in five years, based
on projections of individuals to be served, retirement and other
departures of personnel from the field, and other relevant factors.
(2) The data on special education and related services personnel
required in paragraph (b)(1) of this section must include audiologists,
counselors, diagnostic and evaluation personnel, home-hospital teachers,
interpreters for students with hearing impairments including deafness,
occupational therapists, physical education teachers, physical
therapists, psychologists, rehabilitation counselors, social workers,
speech-language pathologists, teacher aides, recreation and therapeutic
recreation specialists, vocational education teachers, work-study
coordinators, and other instructional and noninstructional staff.
(3) The data on leadership personnel required by paragraph (b)(1) of
this section must include administrators and supervisors of State or
local agencies who are involved in the provision or supervision of
services or activities necessary to carry out the purposes of this part.
(c) Data on personnel development. The system required in paragraph
(a) of this section must enable each State to determine, on an annual
basis, the institutions of higher education within the State that are
preparing special education and related services personnel, including
leadership personnel, by area of specialization, including--
(1) The numbers of students enrolled in programs for the preparation
of special education and related services personnel administered by
these institutions of higher education; and
(2) The numbers of students who graduated during the past year with
certification or licensure, or with credentials to qualify for
certification or licensure, from programs for the preparation of special
education and related services personnel administered by institutions of
higher education.
(Authority: 20 U.S.C. 1413(a)(3)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.384-300.387 [Reserved]
Subpart D--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. 1413(a)(4)(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;
(2) At no cost to the parents; and
(3) At a school or facility that meets the standards that apply to
the SEA and LEAs (including the requirements of this part); and
(b) Has all of the rights of a child with a disability who is served
by a public agency.
(Authority: 20 U.S.C. 1413(a)(4)(B))
[[Page 46]]
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. 1413(a)(4)(B))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.403 Placement of children by parents.
(a) If a child with a disability has FAPE available and the parents
choose to place the child in a private school or facility, the public
agency is not required by this part to pay for the child's education at
the private school or facility. However, the public agency shall make
services available to the child as provided under Secs. 300.450-300.452.
(b) Disagreements between a parent and a public agency regarding the
availability of a program appropriate for the child, and the question of
financial responsibility, are subject to the due process procedures of
Secs. 300.500-300.515.
(Authority: 20 U.S.C. 1412(2)(B); 1415)
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. 1413(a)(4)(A))
Sec. 300.451 State educational agency responsibility.
The SEA shall ensure that--
(a) To the extent consistent with their number and location in the
State, provision is made for the participation of private school
children with disabilities in the program assisted or carried out under
this part by providing them with special education and related services;
and
(b) The requirements of 34 CFR 76.651-76.662 are met.
(Authority: 20 U.S.C. 1413(a)(4)(A))
Sec. 300.452 Local educational agency responsibility.
Each LEA shall provide special education and related services
designed to meet the needs of private school children with disabilities
residing in the jurisdiction of the agency.
(Authority: 20 U.S.C. 1413(a)(4)(A); 1414(a)(6))
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 this part, as required by section 613(a)(4)(A) of the
Act and by Secs. 300.451-300.452.
(b) The Secretary waives the requirement of section 613(a)(4)(A) of
the Act and of Secs. 300.451-300.452 if the Secretary implements a by-
pass.
(Authority: 20 U.S.C. 1413(d)(1))
Sec. 300.481 Provisions for services under a by-pass.
(a) Before implementing a by-pass, the Secretary consults with
appropriate public and private school officials, including SEA
officials, in the affected State to consider matters such as--
(1) The prohibition imposed by State law that results in the need
for a by-pass;
(2) The scope and nature of the services required by private school
children with disabilities in the State, and the number of children to
be served under the by-pass; and
[[Page 47]]
(3) The establishment of policies and procedures to ensure that
private school children with disabilities receive services consistent
with the requirements of section 613(a)(4)(A) of the Act, Secs. 300.451-
300.452, and 34 CFR Secs. 76.651-76.662.
(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 613(a)(4)(A) of the Act and Secs. 300.451-300.452 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 this part 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 this
part 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. 1413(d)(2))
Due Process Procedures
Source: Sections 300.482 through 300.486 appear at 49 FR 48526, Dec.
12, 1984, unless otherwise noted.
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. 1413(d)(3)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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. 1413(d)(3)(A))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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.
[[Page 48]]
(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. 1413(d)(3)(A))
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. 1413(d)(3)(A))
Sec. 300.486 Filing requirements.
(a) Any written submission under Sec. 300.482-300.485 must be filed
by hand-delivery, by mail, or by facsimile transmission. The Secretary
discourages the use of facsimile transmission for documents longer than
five pages.
(b) The filing date under paragraph (a) of this section is the date
the document is--
(1) Hand-delivered;
(2) Mailed; or
(3) Sent by facsimile transmission.
(c) A party filing by facsimile transmission is responsible for
confirming that a complete and legible copy of the document was received
by the Department.
(d) If a document is filed by facsimile transmission, the Secretary
or the hearing officer, as applicable, may require the filing of a
follow-up hard copy by hand-delivery or by mail within a reasonable
period of time.
(e) If agreed upon by the parties, service of a document may be made
upon the other party by facsimile transmission.
(Authority: 20 U.S.C. 1413(d)(3)(A))
[57 FR 56796, Nov. 30, 1992]
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 613(d)(3)(B)-(D) of the Act.
(Authority: 20 U.S.C. 1413(d)(3)(B)-(D))
[57 FR 44798, Sept. 29, 1992. Redesignated at 57 FR 56796, Nov. 30,
1992]
Subpart E--Procedural Safeguards
Due Process Procedures for Parents and Children
Sec. 300.500 Definitions of ``consent,'' ``evaluation,'' and ``personally identifiable.''
(a) As used in this part: Consent means that--
(1) 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;
(2) 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
(3) The parent understands that the granting of consent is voluntary
on the part of the parent and may be revoked at any time.
(b) Evaluation means procedures used in accordance with
Secs. 300.530-300.534 to determine whether a child has a disability and
the nature and extent of
[[Page 49]]
the special education and related services that the child needs. The
term means procedures used selectively with an individual child and does
not include basic tests administered to or procedures used with all
children in a school, grade, or class.
(c) Personally identifiable means that information includes--
(1) The name of the child, the child's parent, or other family
member;
(2) The address of the child;
(3) A personal identifier, such as the child's social security
number or student number; or
(4) 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, 1417(c))
Sec. 300.501 General responsibility of public agencies.
Each SEA shall ensure that each public agency establishes and
implements procedural safeguards that meet the requirements of
Secs. 300.500-300.515.
(Authority: 20 U.S.C. 1415(a))
Sec. 300.502 Opportunity to examine records.
The parents of a child with a disability shall be afforded, in
accordance with the procedures of Secs. 300.562-300.569, an opportunity
to inspect and review all education records with respect to--
(a) The identification, evaluation, and educational placement of the
child; and
(b) The provision of FAPE to the child.
(Authority: 20 U.S.C. 1415(b)(1)(A))
Sec. 300.503 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the
right under this part to obtain an independent educational evaluation of
the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency shall provide to parents, on request,
information about where an independent educational evaluation may be
obtained.
(3) For the purposes of this part:
(i) Independent educational evaluation means an evaluation conducted
by a qualified examiner who is not employed by the public agency
responsible for the education of the child in question.
(ii) Public expense means that the public agency either pays for the
full cost of the evaluation or ensures that the evaluation is otherwise
provided at no cost to the parent, consistent with Sec. 300.301.
(b) Parent right to evaluation at public expense. A parent has the
right to an independent educational evaluation at public expense if the
parent disagrees with an evaluation obtained by the public agency.
However, the public agency may initiate a hearing under Sec. 300.506 to
show that its evaluation is appropriate. If the final decision is that
the evaluation is appropriate, the parent still has the right to an
independent educational evaluation, but not at public expense.
(c) Parent initiated evaluations. If the parent obtains an
independent educational evaluation at private expense, the results of
the evaluation--
(1) Must be considered by the public agency 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. Whenever an independent 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 which the public agency uses when it
initiates an evaluation.
(Authority: 20 U.S.C. 1415(b)(1)(A))
Sec. 300.504 Prior notice; parent consent.
(a) Notice. Written notice that meets the requirements of
Sec. 300.505 must be given to the parents of a child with a disability a
reasonable time before the public agency--
(1) Proposes to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child; or
[[Page 50]]
(2) Refuses to initiate or change the identification, evaluation, or
educational placement of the child or the provision of FAPE to the
child.
(b) Consent; procedures if a parent refuses consent. (1) Parental
consent must be obtained before--
(i) Conducting a preplacement evaluation; and
(ii) Initial placement of a child with a disability in a program
providing special education and related services.
(2) If State law requires parental consent before a child with a
disability is evaluated or initially provided special education and
related services, State procedures govern the public agency in
overriding a parent's refusal to consent.
(3) If there is no State law requiring consent before a child with a
disability is evaluated or initially provided special education and
related services, the public agency may use the hearing procedures in
Secs. 300.506-300.508 to determine if the child may be evaluated or
initially provided special education and related services without
parental consent. If it does so and the hearing officer upholds the
agency, the agency may evaluate or initially provide special education
and related services to the child without the parent's consent, subject
to the parent's rights under Secs. 300.510-300.513.
(c) Additional State consent requirements. In addition to the
parental consent requirements described in paragraph (b) 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.
(d) Limitation. A public agency may not require parental consent as
a condition of any benefit to the parent or the child except for the
service or activity for which consent is required under paragraphs (b)
or (c) of this section.
(Authority: 20 U.S.C. 1415(b)(1)(C), (D); 1412(2), (6))
Note 1: Any changes in a child's special education program after the
initial placement are not subject to the parental consent requirements
in paragraph (b)(1) of this section, but are subject to the prior notice
requirement in paragraph (a) of this section and the IEP requirements of
Secs. 300.340-300.350.
Note 2: Paragraph (b)(2) of this section means that if State law
requires parental consent before evaluation or before special education
and related services are initially provided, and the parent refuses (or
otherwise withholds) consent, State procedures, such as obtaining a
court order authorizing the public agency to conduct the evaluation or
provide the education and related services, must be followed.
If, however, there is no legal requirement for consent outside of
these regulations, the public agency may use the due process procedures
of Secs. 300.506-300.508 to obtain a decision to allow the evaluation or
services without parental consent. The agency must notify the parent of
its actions, and the parent has appeal rights as well as rights at the
hearing itself.
Note 3: If a State adopts a consent requirement in addition to those
described in paragraph (b) of this section and consent is refused,
paragraph (d) of this section requires that the public agency must
nevertheless provide the services and activities that are not in
dispute. For example, if a State requires parental consent to the
provision of all services identified in an IEP and the parent refuses to
consent to physical therapy services included in the IEP, the agency is
not relieved of its obligation to implement those portions of the IEP to
which the parent consents.
If the parent refuses to consent and the public agency determines
that the service or activity in dispute is necessary to provide FAPE to
the child, paragraph (c) of this section requires that the agency must
implement its procedures to override the refusal. This section does not
preclude the agency from reconsidering its proposal if it believes that
circumstances warrant.
Sec. 300.505 Content of notice.
(a) The notice under Sec. 300.504 must include--
(1) A full explanation of all of the procedural safeguards available
to the parents under Sec. 300.500, Secs. 300.502-300.515, and
Secs. 300.562-300.569;
(2) A description of the action proposed or refused by the agency,
an explanation of why the agency proposes or refuses to take the action,
and a description of any options the agency considered and the reasons
why those options were rejected;
[[Page 51]]
(3) A description of each evaluation procedure, test, record, or
report the agency uses as a basis for the proposal or refusal; and
(4) A description of any other factors that are relevant to the
agency's proposal or refusal.
(b) The notice must be--
(1) Written in language understandable to the general public; and
(2) 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.
(c) If the native language or other mode of communication of the
parent is not a written language, the SEA or LEA shall take steps to
ensure--
(1) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(2) That the parent understands the content of the notice; and
(3) That there is written evidence that the requirements in
paragraphs (c)(1) and (2) of this section have been met.
(Authority: 20 U.S.C. 1415(b)(1)(D))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.506 Impartial due process hearing.
(a) A parent or a public educational agency may initiate a hearing
on any of the matters described in Sec. 300.504(a)(1) and (2).
(b) The hearing 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) The public agency shall inform the parent of any free or low-
cost legal and other relevant services available in the area if--
(1) The parent requests the information; or
(2) The parent or the agency initiates a hearing under this section.
(Authority: 20 U.S.C. 1415(b)(2))
Note: Many States have pointed to the success of using mediation as
an intervening step prior to conducting a formal due process hearing.
Although the process of mediation is not required by the statute or
these regulations, an agency may wish to suggest mediation in disputes
concerning the identification, evaluation, and educational placement of
children with disabilities, and the provision of FAPE to those children.
Mediations have been conducted by members of SEAs or LEA personnel who
were not previously involved in the particular case. In many cases,
mediation leads to resolution of differences between parents and
agencies without the development of an adversarial relationship and with
minimal emotional stress. However, mediation may not be used to deny or
delay a parent's rights under Secs. 300.500-300.515.
Sec. 300.507 Impartial hearing officer.
(a) A hearing may not be conducted--
(1) By a person who is an employee of a public agency 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. 1414(b)(2))
Sec. 300.508 Hearing rights.
(a) Any party to a hearing 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 five days before the
hearing.
(4) Obtain a written or electronic verbatim record of the hearing.
(5) Obtain written findings of fact and decisions. The public
agency, after
[[Page 52]]
deleting any personally identifiable information, shall--
(i) Transmit those findings and decisions to the State advisory
panel established under Sec. 300.650; and
(ii) Make those findings and decisions available to the public.
(b) Parents involved in hearings must be given the right to--
(1) Have the child who is the subject of the hearing present; and
(2) Open the hearing to the public.
(Authority: 20 U.S.C. 1415(d))
Sec. 300.509 Hearing decision; appeal.
A decision made in a hearing conducted under Sec. 300.506 is final,
unless a party to the hearing appeals the decision under Sec. 300.510 or
Sec. 300.511.
(Authority: 20 U.S.C. 1415(c))
Sec. 300.510 Administrative appeal; impartial review.
(a) If the hearing 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.
(b) If there is an appeal, the SEA shall conduct an impartial review
of the hearing. The official conducting the review shall:
(1) Examine the entire hearing record.
(2) Ensure that the procedures at the hearing were consistent with
the requirements of due process.
(3) Seek additional evidence if necessary. If a hearing is held to
receive additional evidence, the rights in 300.508 apply.
(4) Afford the parties an opportunity for oral or written argument,
or both, at the discretion of the reviewing official.
(5) Make an independent decision on completion of the review.
(6) Give a copy of written findings and the decision to the parties.
(c) The SEA, after deleting any personally identifiable information,
shall--
(1) Transmit the findings and decisions referred to in paragraph
(b)(6) 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) The decision made by the reviewing official is final unless a
party brings a civil action under Sec. 300.511.
(Authority: 20 U.S.C. 1415(c), (d); H. R. Rep. No. 94-664, at p. 49
(1975))
Note 1: The SEA may conduct its review either directly or through
another State agency acting on its behalf. However, the SEA remains
responsible for the final decision on review.
Note 2: All parties have the right to continue to be represented by
counsel at the State administrative review level, whether or not the
reviewing official determines that a further hearing is necessary. If
the reviewing official decides to hold a hearing to receive additional
evidence, the other rights in Sec. 300.508 relating to hearings also
apply.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.511 Civil action.
Any party aggrieved by the findings and decision made in a hearing
who does not have the right to appeal under Sec. 300.510, and any party
aggrieved by the decision of a reviewing officer under Sec. 300.510, has
the right to bring a civil action under section 615(e)(2) of the Act.
(Authority: 20 U.S.C. 1415)
Sec. 300.512 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.
[[Page 53]]
(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)
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.513 Child's status during proceedings.
(a) During the pendency of any administrative or judicial proceeding
regarding a complaint, unless the public agency and the parents of the
child agree otherwise, the child involved in the complaint must remain
in his or her present 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 program until the completion of all the
proceedings.
(Authority: 20 U.S.C. 1415(e)(3))
Note: Section 300.513 does not permit a child's placement to be
changed during a complaint proceeding, unless the parents and agency
agree otherwise. While the placement may not be changed, this does not
preclude the agency from using its normal procedures for dealing with
children who are endangering themselves or others.
Sec. 300.514 Surrogate parents.
(a) General. Each public agency shall ensure that the rights of a
child are protected when--
(1) No parent (as defined in Sec. 300.13) can be identified;
(2) The public agency, after reasonable efforts, cannot discover the
whereabouts of a parent; or
(3) The child is a ward of the State under the laws of that State.
(b) Duty of public agency. The duty of a public agency under
paragraph (a) of this section includes the assignment of an individual
to act as a surrogate for the parents. This must include a method: (1)
For determining whether a child needs a surrogate parent, and (2) for
assigning a surrogate parent to the child.
(c) Criteria for selection of surrogates. (1) The public agency may
select a surrogate parent in any way permitted under State law.
(2) Public agencies shall ensure that a person selected as a
surrogate--
(i) Has no interest that conflicts with the interest of the child he
or she represents; and
(ii) Has knowledge and skills that ensure adequate representation of
the child.
(d) Non-employee requirement; compensation. (1) A person assigned as
a surrogate may not be an employee of a public agency that is involved
in the education or care of the child.
(2) A person who otherwise qualifies to be a surrogate parent under
paragraphs (c) and (d)(1) of this section, is not an employee of the
agency solely because he or she is paid by the agency to serve as a
surrogate parent.
(e) Responsibilities. The surrogate parent may represent the child
in all matters relating to--
(1) The identification, evaluation, and educational placement of the
child; and
(2) The provision of FAPE to the child.
(Authority: 20 U.S.C. 1415(b)(1)(B))
Sec. 300.515 Attorneys' fees.
Each public agency shall inform parents that in any action or
proceeding under section 615 of the Act, courts may award parents
reasonable attorneys' fees under the circumstances described in section
615(e)(4) of the Act.
(Authority: 20 U.S.C. 1415(b)(1)(D); 1415(e)(4))
Protection in Evaluation Procedures
Sec. 300.530 General.
(a) Each SEA shall ensure that each public agency establishes and
implements procedures that meet the requirements of Secs. 300.530-
300.534.
(b) Testing and evaluation materials and procedures used for the
purposes of evaluation and placement of children with disabilities must
be selected and administered so as not to be racially or culturally
discriminatory.
(Authority: 20 U.S.C. 1412(5)(C))
[[Page 54]]
Sec. 300.531 Preplacement evaluation.
Before any action is taken with respect to the initial placement of
a child with a disability in a program providing special education and
related services, a full and individual evaluation of the child's
educational needs must be conducted in accordance with the requirements
of Sec. 300.532.
(Authority: 20 U.S.C. 1412(5)(C))
Sec. 300.532 Evaluation procedures.
State educational agencies and LEAs shall ensure, at a minimum,
that:
(a) Tests and other evaluation materials--
(1) Are provided and administered in the child's native language or
other mode of communication, unless it is clearly not feasible to do so;
(2) Have been validated for the specific purpose for which they are
used; and
(3) Are administered by trained personnel in conformance with the
instructions provided by their producer.
(b) 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.
(c) Tests are selected and administered so as best to ensure that
when 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 (except where those skills are the
factors that the test purports to measure).
(d) No single procedure is used as the sole criterion for
determining an appropriate educational program for a child.
(e) The evaluation is made by a multidisciplinary team or group of
persons, including at least one teacher or other specialist with
knowledge in the area of suspected disability.
(f) 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.
(Authority: 20 U.S.C. 1412(5)(C))
Note: Children who have a speech or language impairment as their
primary disability may not need a complete battery of assessments (e.g.,
psychological, physical, or adaptive behavior). However, a qualified
speech-language pathologist would: (1) Evaluate each child with a speech
or language impairment using procedures that are appropriate for the
diagnosis and appraisal of speech and language impairments, and (2) if
necessary, make referrals for additional assessments needed to make an
appropriate placement decision.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.533 Placement procedures.
(a) In interpreting evaluation data and in making placement
decisions, each public agency shall--
(1) Draw upon information from a variety of sources, including
aptitude and achievement tests, teacher recommendations, physical
condition, social or cultural background, and adaptive behavior;
(2) Ensure that information obtained from all of these sources is
documented and carefully considered;
(3) Ensure that the placement decision is made by a group of
persons, including persons knowledgeable about the child, the meaning of
the evaluation data, and the placement options; and
(4) Ensure that the placement decision is made in conformity with
the LRE rules in Secs. 300.550-300.554.
(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(5)(C); 1414(a)(5))
Note: Paragraph (a)(1) of this section includes a list of examples
of sources that may be used by a public agency in making placement
decisions. The agency would not have to use all the sources in every
instance. The point of the requirement is to ensure that more than one
source is used in interpreting evaluation data and in making placement
decisions. For example, while all of the named sources would have to be
used for a
[[Page 55]]
child whose suspected disability is mental retardation, they would not
be necessary for certain other children with disabilities, such as a
child who has a severe articulation impairment as his primary
disability. For such a child, the speech-language pathologist, in
complying with the multiple source requirement, might use: (1) A
standardized test of articulation, and (2) observation of the child's
articulation behavior in conversational speech.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.534 Reevaluation.
Each SEA and LEA 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 an evaluation of the child, based on procedures that meet
the requirements of Sec. 300.532, is conducted every three years, or
more frequently if conditions warrant, or if the child's parent or
teacher requests an evaluation.
(Authority: 20 U.S.C. 1412(5)(c))
Additional Procedures for Evaluating Children With Specific Learning
Disabilities
Sec. 300.540 Additional team members.
In evaluating a child suspected of having a specific learning
disability, in addition to the requirements of Sec. 300.532, each public
agency shall include on the multidisciplinary evaluation team--
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by
the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-language
pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.541 Criteria for determining the existence of a specific learning disability.
(a) A team may determine that a child has a specific learning
disability if--
(1) The child does not achieve commensurate with his or her age and
ability levels in one or more of the areas listed in paragraph (a)(2) of
this section, when 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; or
(vii) Mathematics reasoning.
(b) The team may not identify a child as having a specific learning
disability if the severe discrepancy between ability and achievement is
primarily the result of--
(1) A visual, hearing, or motor impairment;
(2) Mental retardation;
(3) Emotional disturbance; or
(4) Environmental, cultural or economic disadvantage.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.542 Observation.
(a) At least one team member other than the child's regular teacher
shall observe the child's academic performance in the regular classroom
setting.
(b) In the case of a child of less than school age or out of school,
a team member shall observe the child in an environment appropriate for
a child of that age.
(Authority: 20 U.S.C. 1411 note)
Sec. 300.543 Written report.
(a) The team shall prepare a written report of the results of the
evaluation.
(b) The report must include a statement of--
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination;
[[Page 56]]
(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.
(c) Each team member shall certify in writing whether the report
reflects his or her conclusion. If it does not reflect his or her
conclusion, the team member must submit a separate statement presenting
his or her conclusions.
(Authority: 20 U.S.C. 1411 note)
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Least Restrictive Environment
Sec. 300.550 General.
(a) Each SEA shall ensure that each public agency establishes and
implements procedures that meet 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 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.
(Authority: 20 U.S.C. 1412(5)(B); 1414(a)(1)(C)(iv))
Sec. 300.551 Continuum of alternative placements.
(a) Each public agency shall ensure that a continuum of alternative
placements is available to meet the needs of children with disabilities
for special education and related services.
(b) The continuum required in paragraph (a) of this section must--
(1) Include the alternative placements listed in the definition of
special education under Sec. 300.17 (instruction in regular classes,
special classes, special schools, home instruction, and instruction in
hospitals and institutions); and
(2) Make provision for supplementary services (such as resource room
or itinerant instruction) to be provided in conjunction with regular
class placement.
(Authority: 20 U.S.C. 1412(5)(B))
Sec. 300.552 Placements.
Each public agency shall ensure that:
(a) The educational placement of each child with a disability--
(1) Is determined at least annually;
(2) Is based on his or her IEP; and
(3) Is as close as possible to the child's home.
(b) The various alternative placements included at Sec. 300.551 are
available to the extent necessary to implement the IEP for each child
with a disability.
(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.
(Authority: 20 U.S.C. 1412(5)(B))
Note: Section 300.552 includes some of the main factors that must be
considered in determining the extent to which a child with a disability
can be educated with children who are nondisabled. The overriding rule
in this section is that placement decisions must be made on an
individual basis. The section also requires each agency to have various
alternative placements available in order to ensure that each child with
a disability receives an education that is appropriate to his or her
individual needs.
The requirements of Sec. 300.552, as well as the other requirements
of Secs. 300.550-300.556, apply to all preschool children with
disabilities who are entitled to receive FAPE. Public agencies that
provide preschool programs for nondisabled preschool children must
ensure that the requirements of Sec. 300.552(c) are met.
[[Page 57]]
Public agencies that do not operate programs for nondisabled preschool
children are not required to initiate such programs solely to satisfy
the requirements regarding placement in the LRE embodied in
Secs. 300.550-300.556. For these public agencies, some alternative
methods for meeting the requirements of Secs. 300.550-300.556 include--
(1) Providing opportunities for the participation (even part-time)
of preschool children with disabilities in other preschool programs
operated by public agencies (such as Head Start);
(2) Placing children with disabilities in private school programs
for nondisabled preschool children or private school preschool programs
that integrate children with disabilities and nondisabled children; and
(3) Locating classes for preschool children with disabilities in
regular elementary schools.
In each case the public agency must ensure that each child's
placement is in the LRE in which the unique needs of that child can be
met, based upon the child's IEP, and meets all of the other requirements
of Secs. 300.340-300.350 and Secs. 300.550-300.556.
The analysis of the regulations for section 504 of the
Rehabilitation Act of 1973 (34 CFR part 104--Appendix, Paragraph 24)
includes several points regarding educational placements of children
with disabilities that are pertinent to this section:
1. With respect to determining proper placements, the analysis
states: ``* * * it should be stressed that, where a handicapped child is
so disruptive in a regular classroom that the education of other
students is significantly impaired, the needs of the handicapped child
cannot be met in that environment. Therefore regular placement would not
be appropriate to his or her needs * * *.''
2. With respect to placing a child with a disability in an alternate
setting, the analysis states that among the factors to be considered in
placing a child is the need to place the child as close to home as
possible. Recipients are required to take this factor into account in
making placement decisions. The parents' right to challenge the
placement of their child extends not only to placement in special
classes or separate schools, but also to placement in a distant school,
particularly in a residential program. An equally appropriate education
program may exist closer to home; and this issue may be raised by the
parent under the due process provisions of this subpart.
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(5)(B))
Note: Section 300.553 is taken from a requirement in the final
regulations for section 504 of the Rehabilitation Act of 1973. With
respect to this requirement, the analysis of the section 504 regulations
includes the following statement: ``[This paragraph] specifies that
handicapped children must also be provided nonacademic services in as
integrated a setting as possible. This requirement is especially
important for children whose educational needs necessitate their being
solely with other handicapped children during most of each day. To the
maximum extent appropriate, children in residential settings are also to
be provided opportunities for participation with other children.'' (34
CFR part 104--Appendix, Paragraph 24.)
Sec. 300.554 Children in public or private institutions.
Each SEA shall make arrangements with public and private
institutions (such as a memorandum of agreement or special
implementation procedures) as may be necessary to ensure that
Sec. 300.550 is effectively implemented.
(Authority: 20 U.S.C. 1412(5)(B))
Note: Under section 612(5)(B) of the statute, the requirement to
educate children with disabilities with nondisabled children also
applies to children in public and private institutions or other care
facilities. Each SEA must ensure that each applicable agency and
institution in the State implements this requirement. Regardless of
other reasons for institutional placement, no child in an institution
who is capable of education in a regular public school setting may be
denied access to an education in that setting.
Sec. 300.555 Technical assistance and training activities.
Each SEA shall carry out activities to ensure that teachers and
administrators in all public agencies--
(a) Are fully informed about their responsibilities for implementing
Sec. 300.550; and
[[Page 58]]
(b) Are provided with technical assistance and training necessary to
assist them in this effort.
(Authority: 20 U.S.C. 1412(5)(B))
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(5)(B))
Confidentiality of Information
Sec. 300.560 Definitions.
As used in Secs. 300.560-300.576--
Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
Education records means the type of records covered under the
definition of education records in part 99 of this title (the
regulations implementing the Family Educational Rights and Privacy Act
of 1974).
Participating agency means any agency or institution that collects,
maintains, or uses personally identifiable information, or from which
information is obtained, under this part.
(Authority: 20 U.S.C. 1412(2)(D); 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. 300.128, 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 part 99 of this title.
(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(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.562 Access rights.
(a) Each participating agency shall permit parents to inspect and
review any education records relating to their children that are
collected, maintained, or used by the agency under this part. The agency
shall comply with a request without unnecessary delay and before any
meeting regarding an IEP or any hearing relating to the identification,
evaluation, or educational placement of the child, or the provision of
FAPE to the child, and in no case more than 45 days after the request
has been made.
(b) The right to inspect and review education records under this
section includes--
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the
records containing the information if failure to provide those copies
would effectively prevent the parent from exercising the right to
inspect and review the records; and
(3) The right to have a representative of the parent inspect and
review the records.
[[Page 59]]
(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(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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 this
part (except access by parents and authorized employees of the
participating agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the
records.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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 shall 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(2)(D); 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(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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(2)(D); 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(2)(D); 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(2)(D); 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 of
[[Page 60]]
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(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.570 Hearing procedures.
A hearing held under Sec. 300.568 must be conducted according to the
procedures under Sec. 99.22 of this title.
[57 FR 48694, Oct. 27, 1992]
Sec. 300.571 Consent.
(a) Parental consent must be obtained before personally identifiable
information is--
(1) Disclosed to anyone other than officials of participating
agencies collecting or using the information under this part, subject to
paragraph (b) of this section; or
(2) Used for any purpose other than meeting a requirement of this
part.
(b) An educational agency or institution subject to part 99 of this
title may not release information from education records to
participating agencies without parental consent unless authorized to do
so under part 99 of this title.
(c) The SEA shall include policies and procedures in its State plan
that are used in the event that a parent refuses to provide consent
under this section.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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. 300.129 and part 99 of this title.
(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(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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(2)(D); 1417(c))
Note: Under Sec. 300.573, the personally identifiable information on
a child with a disability may be retained permanently unless the
[[Page 61]]
parents request that it be destroyed. Destruction of records is the best
protection against improper and unauthorized disclosure. However, the
records may be needed for other purposes. In informing parents about
their rights under this section, the agency should remind them that the
records may be needed by the child or the parents for social security
benefits or other purposes. If the parents request that the information
be destroyed, the agency may retain the information in paragraph (b) of
this section.
Sec. 300.574 Children's rights.
The SEA shall include policies and procedures in its State plan
regarding the extent to which children are afforded rights of privacy
similar to those afforded to parents, taking into consideration the age
of the child and type or severity of disability.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))
Note: 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.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.575 Enforcement.
The SEA shall describe in its State plan the policies and
procedures, including sanctions, that the State uses to ensure that its
policies and procedures are followed and that the requirements of the
Act and the regulations in this part are met.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.576 Department.
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 shall apply 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 part 5b of
this title.
(Authority: 20 U.S.C. 1412(2)(D); 1417(c))
Department Procedures
Sec. 300.580 [Reserved]
Sec. 300.581 Disapproval of a State plan.
Before disapproving a State plan, the Secretary gives the SEA
written notice and an opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.582 Content of notice.
(a) In the written notice, the Secretary--
(1) States the basis on which the Secretary proposes to disapprove
the State plan;
(2) May describe possible options for resolving the issues;
(3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 calendar days after
it receives the notice of proposed disapproval; and
(4) Provides information about the procedures followed for a
hearing.
(b) The Secretary sends the written notice to the SEA by certified
mail with return receipt requested.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.583 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. 1413(c))
Sec. 300.584 Hearing procedures.
(a) As used in Secs. 300.581-300.586 the term party or parties means
the following:
(1) An SEA that requests a hearing regarding the proposed
disapproval of its State plan under this part.
[[Page 62]]
(2) The Department of Education 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 calendar days after receiving a request for a hearing,
the Secretary designates a Hearing Official or Panel and notifies the
parties.
(c) The Hearing Official or Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings. The
Hearing Official or Panel takes all steps necessary to conduct a fair
and impartial proceeding, to avoid delay, and to maintain order,
including the following:
(1) The Hearing Official or Panel may hold conferences or other
types of appropriate proceedings to clarify, simplify, or define the
issues or to consider other matters that may aid in the disposition of
the case.
(2) The Hearing Official or Panel may schedule a prehearing
conference of the Hearing Official or Panel and parties.
(3) Any party may request the Hearing Official or Panel to schedule
a prehearing or other conference. The Hearing Official or Panel decides
whether a conference is necessary and notifies all parties.
(4) At a prehearing or other conference, the Hearing Official or
Panel and the parties may consider subjects such as--
(i) Narrowing and clarifying issues;
(ii) Assisting the parties in reaching agreements and stipulations;
(iii) Clarifying the positions of the parties;
(iv) Determining whether an evidentiary hearing or oral argument
should be held; and
(v) Setting dates for--
(A) The exchange of written documents;
(B) The receipt of comments from the parties on the need for oral
argument or evidentiary hearing;
(C) Further proceedings before the Hearing Official or Panel
(including an evidentiary hearing or oral argument, if either is
scheduled);
(D) Requesting the names of witnesses each party wishes to present
at an evidentiary hearing and estimation of time for each presentation;
or
(E) Completion of the review and the initial decision of the Hearing
Official or Panel.
(5) A prehearing or other conference held under paragraph (b)(4) of
this section may be conducted by telephone conference call.
(6) At a prehearing or other conference, the parties shall be
prepared to discuss the subjects listed in paragraph (b)(4) of this
section.
(7) Following a prehearing or other conference the Hearing Official
or Panel may issue a written statement describing the issues raised, the
action taken, and the stipulations and agreements reached by the
parties.
(d) The Hearing Official or Panel may require parties to state their
positions and to provide all or part of the evidence in writing.
(e) The Hearing Official or Panel may require parties to present
testimony through affidavits and to conduct cross-examination through
interrogatories.
(f) The Hearing Official or Panel may direct the parties to exchange
relevant documents or information and lists of witnesses, and to send
copies to the Hearing Official or Panel.
(g) The Hearing Official or Panel may receive, rule on, exclude, or
limit evidence at any stage of the proceedings.
(h) The Hearing Official or Panel may rule on motions and other
issues at any stage of the proceedings.
(i) The Hearing Official or Panel may examine witnesses.
(j) The Hearing Official or Panel may set reasonable time limits for
submission of written documents.
(k) The Hearing Official or Panel may refuse to consider documents
or other submissions if they are not submitted in a timely manner unless
good cause is shown.
(l) The Hearing Official or Panel may interpret applicable statutes
and regulations but may not waive them or rule on their validity.
(m)(1) The parties shall present their positions through briefs and
the submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Panel shall determine
whether an
[[Page 63]]
oral argument or an evidentiary hearing is needed to clarify the
positions of the parties.
(2) The Hearing Official or Panel gives each party an opportunity to
be represented by counsel.
(n) If the Hearing Official or Panel determines that an evidentiary
hearing would materially assist the resolution of the matter, the
Hearing Official or Panel gives each party, in addition to the
opportunity to be represented by counsel--
(1) An opportunity to present witnesses on the party's behalf; and
(2) An opportunity to cross-examine witnesses either orally or with
written questions.
(o) The Hearing Official or Panel accepts any evidence that it finds
is relevant and material to the proceedings and is not unduly
repetitious.
(p)(1) The Hearing Official or Panel--
(i) Arranges for the preparation of a transcript of each hearing;
(ii) Retains the original transcript as part of the record of the
hearing; and
(iii) Provides one copy of the transcript to each party.
(2) Additional copies of the transcript are available on request and
with payment of the reproduction fee.
(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. 1413(c))
Sec. 300.585 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. 300.582.
(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 calendar 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 calendar
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 calendar 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 calendar days
after notifying the Hearing Official or Panel that the initial decision
is being further reviewed.
Sec. 300.586 Filing requirements.
(a) Any written submission under Secs. 300.582-300.585 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;
[[Page 64]]
(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))
[57 FR 56796, Nov. 30, 1992]
Sec. 300.587 Judicial review.
If a State is dissatisfied with the Secretary's final action with
respect to its State plan, the State may, within 60 calendar 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.
(Authority: 20 U.S.C. 1416(b)(1))
[57 FR 44798, Sept. 29, 1992. Redesignated at 57 FR 56796, Nov. 30,
1992]
Sec. 300.588 [Reserved]
Sec. 300.589 Waiver of requirement regarding supplementing and supplanting with part B funds.
(a) Under sections 613(a)(9)(B) and 614(a)(2)(B)(ii) of the Act,
SEAs and LEAs must ensure that Federal funds provided under this part
are 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 this part and in no case to
supplant those Federal, State, and local funds. The nonsupplanting
requirement applies only to funds allocated to LEAs (See Sec. 300.372).
(b) If the State provides clear and convincing evidence that all
children with disabilities have FAPE available to them, the Secretary
may waive in part the requirement under sections 613(a)(9)(B) and
614(a)(2)(B)(ii) of the Act if the Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a waiver, it must inform the
Secretary in writing. The Secretary then provides the State with a
finance and membership report form that provides the basis for the
request.
(d) In its request for a waiver, the State shall include the results
of a special study made by the State to obtain evidence of the
availability of FAPE to all children with disabilities. The special
study must include statements by a representative sample of
organizations that deal with children with disabilities, and parents and
teachers of children with disabilities, relating to the following
areas--
(1) The adequacy and comprehensiveness of the State's system for
identifying, locating, and evaluating children with disabilities;
(2) The cost to parents, if any, for education for children enrolled
in public and private day schools, and in public and private residential
schools and institutions; and
(3) The adequacy of the State's due process procedures.
(e) In its request for a waiver, the State shall include finance
data relating to the availability of FAPE for all children with
disabilities, including--
(1) The total current expenditures for regular education programs
and special education programs by function and by source of funds
(State, local, and Federal) for the previous school year; and
(2) The full-time equivalent membership of students enrolled in
regular programs and in special programs in the previous school year.
(f) The Secretary considers the information that the State provides
under paragraphs (d) and (e) of this section, along with any additional
information he may request, or obtain through on-site reviews of the
State's education programs and records, to determine if all children
have FAPE available to them, and if so, the extent of the waiver.
[[Page 65]]
(g) The State may request a hearing with regard to any final action
by the Secretary under this section.
(Authority: 20 U.S.C. 1411(c)(3); 1413(a)(9)(B))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
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 public 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) This part may not be construed to 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.
(Authority: 20 U.S.C. 1412(6))
Note: The requirement in Sec. 300.600(a) is taken essentially
verbatim from section 612(6) of the statute and reflects the desire of
the Congress for a central point of responsibility and accountability in
the education of children with disabilities within each State. With
respect to SEA responsibility, the Senate Report on Pub. L. 94-142
includes the following statements:
This provision is included specifically to assure a single line of
responsibility with regard to the education of handicapped children, and
to assure that in the implementation of all provisions of this Act and
in carrying out the right to education for handicapped children, the
State educational agency shall be the responsible agency * * *.
Without this requirement, there is an abdication of responsibility
for the education of handicapped children. Presently, in many States,
responsibility is divided, depending upon the age of the handicapped
child, sources of funding, and type of services delivered. While the
Committee understands that different agencies may, in fact, deliver
services, the responsibility must remain in a central agency overseeing
the education of handicapped children, so that failure to deliver
services or the violation of the rights of handicapped children is
squarely the responsibility of one agency. (S. Rep. No. 94-168, p. 24
(1975))
In meeting the requirements of this section, there are a number of
acceptable options that may be adopted, including the following:
(1) Written agreements are developed between respective State
agencies concerning SEA standards and monitoring. These agreements are
binding on the local or regional counterparts of each State agency.
(2) The Governor's Office issues an administrative directive
establishing the SEA responsibility.
(3) State law, regulation, or policy designates the SEA as
responsible for establishing standards for all educational programs for
individuals with disabilities, and includes responsibility for
monitoring.
(4) State law mandates that the SEA is responsible for all
educational programs.
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.601 Relation of part B to other Federal programs.
This part 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. 1413(e))
Use of Funds
Sec. 300.620 Federal funds for State administration.
A State may use five percent of the total State allotment in any
fiscal year under part B of the Act, or $450,000,
[[Page 66]]
whichever is greater, for administrative costs related to carrying out
sections 612 and 613 of the Act. However, this amount cannot be greater
than twenty-five percent of the State's total allotment for the fiscal
year under part B of the Act.
(Authority: 20 U.S.C. 1411(b), (c))
Sec. 300.621 Allowable costs.
(a) The SEA may use funds under Sec. 300.620 for--
(1) Administration of the State plan 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
this part;
(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(b), (c))
State Advisory Panel
Sec. 300.650 Establishment.
(a) Each State shall establish, in accordance with the provisions of
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. 1413(a)(12))
Sec. 300.651 Membership.
(a) The membership of the State advisory panel must be composed of
persons involved in or concerned with the education of children with
disabilities. The membership must include at least one person
representative of each of the following groups--
(1) Individuals with disabilities;
(2) Teachers of children with disabilities;
(3) Parents of children with disabilities;
(4) State and local educational officials; and
(5) Special education program administrators.
(b) The State may expand the advisory panel to include additional
persons in the groups listed in paragraph (a) of this section and
representatives of other groups not listed.
(Authority: 20 U.S.C. 1413(a)(12))
Note: The membership of the State advisory panel, as listed in
paragraphs (a)(1)-(5) of this section, is required in section 613(a)(12)
of the Act. As indicated in paragraph (b) of this section, the
composition of the panel and the number of members may be expanded at
the discretion of the State. In adding to the membership, consideration
could be given to having--
(1) An appropriate balance between professional groups and consumers
(i.e., parents, advocates, and individuals with disabilities);
(2) Broad representation within the consumer-advocate groups, to
ensure that the interests and points of view of various parents,
advocates and individuals with disabilities are appropriately
represented;
(3) Broad representation within professional groups (e.g., regular
education personnel: special educators, including teachers, teacher
trainers, and administrators, who can properly represent various
dimensions in the education of children with disabilities; and
appropriate related services personnel); and
(4) Representatives from other State advisory panels (such as
vocational education).
If a State elects to maintain a small advisory panel (e.g., 10-15
members), the panel itself could take steps to ensure that it (1)
consults with and receives inputs from various consumer and special
interest professional groups, and (2) establishes committees for
particular short-term purposes composed of representatives from those
input groups.
Sec. 300.652 Advisory panel functions.
The State advisory panel shall--
[[Page 67]]
(a) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
(b) Comment publicly on the State plan and rules or regulations
proposed for issuance by the State regarding the education of children
with disabilities and the procedures for distribution of funds under
this part; and
(c) Assist the State in developing and reporting such information
and evaluations as may assist the Secretary in the performance of his
responsibilities under section 618 of the Act.
(Authority: 20 U.S.C. 1413(a)(12))
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 this part.
(c) Official minutes must be kept on all panel meetings and shall be
made available to the public on request.
(d) All advisory panel meetings and agenda items must be publicly
announced prior to the meeting, and meetings must be open to the public.
(e) Interpreters and other necessary services must be provided at
panel meetings for panel members or participants. The State may pay for
these services from funds under Sec. 300.620.
(f) The advisory panel shall serve without compensation but the
State must reimburse the panel for reasonable and necessary expenses for
attending meetings and performing duties. The State may use funds under
Sec. 300.620 for this purpose.
(Authority: 20 U.S.C. 1413(a)(12))
(Approved by the Office of Management and Budget under control number
1820-0030)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
State Complaint Procedures
Sec. 300.660 Adoption of State complaint procedures.
Each SEA shall adopt written procedures for:
(a) Resolving any complaint that meets the requirements of
Sec. 300.662 by--
(1) Providing for the filing of a complaint with the SEA; and
(2) At the SEA's discretion, providing for the filing of a complaint
with a public agency and the right to have the SEA review the public
agency's decision on the complaint.
(b) Informing parents and other interested individuals about the
procedures in Secs. 300.660-300.662.
(Authority: 20 U.S.C. 2831(a))
(Approved by the Office of Management and Budget under control number
1820-0599)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.661 Minimum State complaint procedures.
Each SEA shall include the following in its complaint procedures:
(a) A time limit of 60 calendar days after a complaint is filed
under Sec. 300.660(a) to--
(1) Carry out an independent on-site investigation, if the SEA
determines that such an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Review all relevant information and make an independent
determination as to whether the public agency is violating a requirement
of part B of the Act or of this part; and
(4) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA's final decision.
(b) An extension of the time limit under paragraph (a) of this
section only if exceptional circumstances exist with respect to a
particular complaint.
(c) Procedures for effective implementation of the SEA's final
decision, if needed, including technical assistance activities,
negotiations, and corrective actions to achieve compliance.
[[Page 68]]
(d) The right of the complainant or the public agency to request the
Secretary to review the SEA's final decision.
(Authority: 20 U.S.C. 2831(a))
(Approved by the Office of Management and Budget under control number
1820-0599)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.662 Filing a complaint.
An organization or individual may file a signed written complaint
under the procedures described in Secs. 300.600-300.661. The complaint
must include--
(a) A statement that a public agency has violated a requirement of
part B of the Act or of this part; and
(b) The facts on which the statement is based.
(Authority: 20 U.S.C. 2831(a))
(Approved by the Office of Management and Budget under control number
1820-0599)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Subpart G--Allocation of Funds; Reports
Allocations
Sec. 300.700 Special definition of the term ``State.''
For the purposes of Sec. 300.701, Sec. 300.702, and Secs. 300.704-
300.708, the term State does not include Guam, American Samoa, the
Virgin Islands, the Commonwealth of the Northern Mariana Islands, the
Federated States of Micronesia, the Republic of the Marshall Islands, or
Palau.
(Authority: 20 U.S.C. 1411(a)(2))
Sec. 300.701 State entitlement; formula.
(a) The Secretary calculates the maximum amount of the grant to
which a State is entitled under section 611 of the Act in any fiscal
year as follows:
(1) If the State is eligible for a grant under section 619 of the
Act, the maximum entitlement is equal to the number of children with
disabilities aged 3 through 21 in the State who are receiving special
education and related services, multiplied by 40 percent of the average
per pupil expenditure in public elementary and secondary schools in the
United States.
(2) If the State is not eligible for a grant under section 619 of
the Act, the maximum entitlement is equal to the number of children with
disabilities aged 6 through 21 in the State who are receiving special
education and related services, multiplied by 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)(1))
(b) [Reserved]
(c) For the purposes of this section, the average per pupil
expenditure in public elementary and secondary schools in the United
States, means the aggregate expenditures during the second fiscal year
preceding the fiscal year for which the computation is made (or if
satisfactory data for that year are not available at the time of
computation, then during the most recent preceding fiscal year for which
satisfactory data are available) of all LEAs in the United States
(which, for the purpose of this section, means the 50 States and the
District of Columbia), plus any direct expenditures by the State for
operation of those agencies (without regard to the source of funds from
which either of those expenditures are made), divided by 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(a)(4))
Sec. 300.702 Limitations and exclusions.
(a) In determining the amount of a grant under Sec. 300.701:
(1) If a State serves all children with disabilities aged 3 through
5 in the State, the Secretary does not count children with disabilities
aged 3 through 17 in the State to the extent that the number of those
children is greater than 12 percent of the number of all children aged 3
through 17 in the State.
(2) If a State does not serve all children with disabilities aged 3
through 5 in the State, the Secretary does not count children with
disabilities aged 5
[[Page 69]]
through 17 to the extent that the number of those children is greater
than 12 percent of the number of all children aged 5 through 17 in the
State.
(3) The Secretary does not count children with disabilities who are
counted under subpart 2 of part D of chapter 1 of title I of the
Elementary and Secondary Education Act of 1965.
(b) For the purposes of paragraph (a) of this section, the number of
children aged 3 through 17 and 5 through 17 in any State is determined
by the Secretary on the basis of the most recent satisfactory data
available.
(Authority: 20 U.S.C. 1411(a)(5))
Sec. 300.703 Ratable reductions.
(a) General. If the sums appropriated for any fiscal year for making
payments to States under section 611 of the Act are not sufficient to
pay in full the total amounts that all States are entitled to receive
for that fiscal year, the maximum amount that all States are entitled to
receive for that fiscal year shall be ratably reduced. In case
additional funds become available for making payments for any fiscal
year during which the preceding sentence is applicable, those reduced
amounts shall be increased on the same basis they were reduced.
(Authority: 20 U.S.C. 1411(g)(1))
(b) Reporting dates for local educational agencies and
reallocations. (1) In any fiscal year that the State entitlement has
been ratably reduced, and that additional funds have not been made
available to pay in full the total of the amounts under paragraph (a) of
this section, the SEA shall fix dates before which each LEA shall report
to the State the amount of funds available to it under this part that it
estimates it will expend.
(2) The amounts available under paragraph (a) of this section, or
any amount that would be available to any other LEA if it were to submit
an application meeting the requirements of this part, that the SEA
determines will not be used for the period of its availability shall be
available for allocation to those LEAs, in the manner provided in
Sec. 300.707, that the SEA determines will need and be able to use
additional funds to carry out approved programs.
(Authority: 20 U.S.C. 1411(g)(2))
Sec. 300.704 Hold harmless provision.
No State shall receive less than the amount it received under part B
of the Act for fiscal year 1977.
(Authority: 20 U.S.C. 1411(a)(1))
Sec. 300.705 Allocation for State in which by-pass is implemented for private school children with disabilities.
In determining the allocation under Secs. 300.700-300.703 of a State
in which the Secretary will implement a by-pass for private school
children with disabilities under Secs. 300.451-300.486, 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. 1411(a)(1)(A), 1411(a)(3), 1413(d))
Sec. 300.706 Within-State distribution: Fiscal year 1979 and after.
Of the funds received under Sec. 300.701 by any State for fiscal
year 1979, and for each fiscal year after fiscal year 1979--
(a) 25 percent may be used by the State in accordance with
Sec. 300.620 and Sec. 300.370; and
(b) 75 percent shall be distributed to the LEAs in the State in
accordance with Sec. 300.707.
(Authority: 20 U.S.C. 1411(c)(1))
Sec. 300.707 Local educational agency entitlement; formula.
From the total amount of funds available to all LEAs, each LEA is
entitled to an amount that bears the same ratio to the total amount as
the number of children with disabilities aged 3 through 21 in that
agency who are receiving special education and related services bears to
the aggregate
[[Page 70]]
number of children with disabilities aged 3 through 21 receiving special
education and related services in all LEAs that apply to the SEA for
funds under part B of the Act.
(Authority: 20 U.S.C. 1411(d))
Sec. 300.708 Reallocation of local educational agency funds.
If an SEA determines that an LEA is adequately providing FAPE to all
children with disabilities residing in the area served by the local
agency with State and local funds otherwise available to the local
agency, the SEA may reallocate funds (or portions of those funds that
are not required to provide special education and related services) made
available to the local agency under Sec. 300.707, to other LEAs within
the State that are not adequately providing special education and
related services to all children with disabilities residing in the areas
served by the other LEAs.
(Authority: 20 U.S.C. 1414(e))
Sec. 300.709 Payments to the Secretary of the Interior for the education of Indian children.
(a) General. (1) The Secretary makes payments to the Secretary of
the Interior to meet the need for assistance for the education of
children with disabilities on reservations, aged 5 through 21, who are
enrolled in elementary and secondary schools for Indian children
operated or funded by the Secretary of the Interior.
(2) In the case of Indian students aged 3 through 5 who are enrolled
in programs affiliated with Bureau of Indian Affairs (BIA) schools that
are required by the States in which the schools are located to attain or
maintain State accreditation and had State accreditation prior to
October 7, 1991, the schools may count those children for the purpose of
distribution of the funds provided under paragraph (a)(1) of this
section to the Secretary of the Interior.
(3) The amount of the payment under paragraph (a)(1) of this section
for any fiscal year is one percent of the aggregate amounts available to
all States under this part for that fiscal year.
(b) Responsibility for meeting the requirements of part B. The
Secretary of the Interior shall be responsible for meeting all of the
requirements of part B of the Act for the children described in
paragraph (a) of this section, in accordance with Sec. 300.260.
(Authority: 20 U.S.C. 1411(f))
Sec. 300.710 Payments to the Secretary of the Interior for Indian tribes or tribal organizations.
(a) General. (1) Beginning with funds appropriated under part B of
the Act for fiscal year 1992, the Secretary, subject to this section,
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 consortiums 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.
(2) The amount of the payment under paragraph (b)(1) of this section
for any fiscal year is .25 percent of the aggregate amounts available
for all States under this part for that fiscal year.
(3) 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.
(b) Distribution of funds. The Secretary of the Interior shall
distribute the total amount of the .25 percent under paragraph (a) of
this section in accordance with section 611(f)(4) of the Act.
(Authority: 20 U.S.C. 1411(f))
Sec. 300.711 Entitlements to jurisdictions.
(a) The jurisdictions to which this section applies are Guam,
American Samoa, the Virgin Islands, the Commonwealth of the Northern
Mariana Islands, the Federated States of Micronesia, the Republic of the
Marshall Islands, and Palau, (until the Compact of
[[Page 71]]
Free Association with Palau takes effect pursuant to section 101(a) of
Pub. L. 99-658).
(b) Each jurisdiction under paragraph (a) of this section is
entitled to a grant for the purposes set forth in section 601(c) of the
Act. The amount to which those jurisdictions are so entitled for any
fiscal year shall not exceed an amount equal to 1 percent of the
aggregate of the amounts available to all States under this part for
that fiscal year. Funds appropriated for those jurisdictions shall be
allocated proportionately among them on the basis of the number of
children aged 3 through 21 in each jurisdiction. However, no
jurisdiction shall receive less than $150,000, and other allocations
shall be ratably reduced if necessary to ensure that each jurisdiction
receives at least that amount.
(c) The amount expended for administration by each jurisdiction
under this section shall not exceed 5 percent of the amount allotted to
the jurisdiction for any fiscal year, or $35,000, whichever is greater.
(Authority: 20 U.S.C. 1411(e))
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.
(Authority: 20 U.S.C. 1411(a)(3))
(b) The SEA shall submit the report on forms provided by the
Secretary.
(Authority: 20 U.S.C. 1411(a)(3))
Note: It is very important to understand that this report and the
requirements that relate to it are solely for allocation purposes. The
population of children the State may count for allocation purposes may
differ from the population of children to whom the State must make FAPE
available. For example, while section 611(a)(5) of the Act limits the
number of children who may be counted for allocation purposes to 12
percent of the general school population aged 3 through 17 (in States
that serve all children with disabilities aged 3 through 5) or 5 through
17 (in States that do not serve all children with disabilities aged 3
through 5), a State might find that 14 percent (or some other
percentage) of its children have disabilities. In that case, the State
must make FAPE available to all of those children with disabilities.
(Approved by the Office of Management and Budget under control number
1820-0043)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Sec. 300.751 Annual report of children served--information required in the report.
(a) In its report, the SEA shall include a table that shows--
(1) The number of children with disabilities receiving special
education and related services on December 1 of that school year;
(2) The number of children with disabilities aged 3 through 5 who
are receiving FAPE;
(3) The number of those children with disabilities aged 6 through 21
within each disability category, as defined in the definition of
``children with disabilities'' in Sec. 300.7; and
(4) The number of those children with disabilities aged 3 through 21
for each year of age (3, 4, 5, etc.).
(b) For the purpose of this part, a child's age is the child's
actual age on the date of the child count: December 1.
(c) The SEA may not report a child aged 6 through 21 under more than
one disability category.
(d) If a child with a disability aged 6 through 21 has more than one
disability, the SEA shall report that child in accordance with the
following procedure:
(1) A child with deaf-blindness must be reported under the category
``deaf-blindness.''
(2) A child who has more than one disability (other than deaf-
blindness) must be reported under the category ``multiple
disabilities.''
(Authority: 20 U.S.C. 1411(a)(3); (5)(A)(ii); 1418(b))
(Approved by the Office of Management and Budget under control number
1820-0043)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
[[Page 72]]
Sec. 300.752 Annual report of children served--certification.
The SEA shall include in its report a certification signed by an
authorized official of the agency that the information provided is an
accurate and unduplicated count of children with disabilities receiving
special education and related services on the dates in question.
(Authority: 20 U.S.C. 1411(a)(3); 1417(b))
Sec. 300.753 Annual report of children served--criteria for counting children.
(a) The SEA may include in its report children with disabilities who
are enrolled in a school or program that is operated or supported by a
public agency, and that either--
(1) Provides them with both special education and related services;
or
(2) Provides them only with special education if they do not need
related services to assist them in benefitting from that special
education.
(b) The SEA may not include children with disabilities in its report
who--
(1) Are not enrolled in a school or program operated or supported by
a public agency;
(2) Are not provided special education that meets State standards;
(3) Are not provided with a related service that they need to assist
them in benefitting from special education;
(4) Are counted by a State agency under subpart 2 of part D of
chapter 1 of title I of the Elementary and Secondary Education Act of
1965; or
(5) Are receiving special education funded solely by the Federal
Government. However, the State may count children covered under
Sec. 300.186(b).
(Authority: 20 U.S.C. 1411(a)(3); 1417(b))
Note 1: Under paragraph (a) of this section, the State may count
children with disabilities in a Head Start or other preschool program
operated or supported by a public agency if those children are provided
special education that meets State standards.
Note 2: Special education, by statutory definition, must be at no
cost to parents. As of September 1, 1978, under the FAPE requirement,
both special education and related services must be at no cost to
parents.
There may be some situations, however, where a child receives
special education from a public source at no cost, but whose parents pay
for the basic or regular education. This child may be counted. The
Department expects that there would only be limited situations where
special education would be clearly separate from regular education--
generally, where speech services is the only special education required
by the child. For example, the child's parents may have enrolled the
child in a regular program in a private school, but the child might be
receiving speech services in a program funded by the LEA. Allowing these
children to be counted will provide incentives (in addition to complying
with the legal requirement in section 613(a)(4)(A) of the Act regarding
private schools) to public agencies to provide services to children
enrolled by their parents in private schools, since funds are generated
in part on the basis of the number of children provided special
education and related services. Agencies should understand, however,
that if a public agency places or refers a child with a disability to a
public or private school for educational purposes, special education
includes the entire educational program provided to the child. In that
case, parents may not be charged for any part of the child's education.
A State may not count Indian children on or near reservations and
children on military facilities if it provides them no special
education. If an SEA or LEA is responsible for serving these children,
and does provide them special education and related services, they may
be counted.
Sec. 300.754 Annual report of children served--other responsibilities of the State educational agency.
In addition to meeting the other requirements of Secs. 300.750-
300.753, the SEA shall--
(a) Establish procedures to be used by LEAs and other educational
institutions in counting the number of children with disabilities
receiving special education and related services;
(b) Set dates by which those agencies and institutions must report
to the SEA to ensure that the State complies with Sec. 300.750(a);
(c) Obtain certification from each agency and institution that an
unduplicated and accurate count has been made;
(d) Aggregate the data from the count obtained from each agency and
institution, and prepare the reports required under Secs. 300.750-
300.753; and
[[Page 73]]
(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(a)(3); 1417(b))
Note: States should note that the data required in the annual report
of children served are not to be transmitted to the Secretary in
personally identifiable form. States are encouraged to collect these
data in non-personally identifiable form.
(Approved by the Office of Management and Budget under control number
1820-0043)
[57 FR 44798, Sept. 29, 1992, as amended at 58 FR 13528, Mar. 11, 1993]
Appendixes A and B to Part 300 [Reserved]
Appendix C to Part 300--Notice of Interpretation
I. Purpose of the IEP
II. IEP Requirements
Sec. 300.340 Definition
Sec. 300.341 State educational agency responsibility
1. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an LEA?
2. For a child placed out of State by a public agency, is the
placing or receiving State responsible for the child's IEP?
Sec. 300.342 When individualized education programs must be in effect
3. In requiring that an IEP be in effect before special education
and related services are provided, what does ``be in effect'' mean?
4. How much of a delay is permissible between the time an IEP of a
child with a disability is finalized and when special education is
provided?
5. For a child with a disability receiving special education for the
first time, when must an IEP be developed--before placement or after
placement?
6. If a child with a disability has been receiving special education
in one LEA and moves to another community, must the new LEA hold an IEP
meeting before the child is placed in a special education program?
Sec. 300.343 Meetings
7. What is the purpose of the 30 day timeline in Sec. 300.343(c)?
8. Must the agency hold a separate meeting to determine a child's
eligibility for special education and related services, or can this step
be combined with the IEP meeting?
9. Must IEPs be reviewed or revised at the beginning of each school
year?
10. How frequently must IEP meetings be held and how long should
they be?
11. Who can initiate IEP meetings?
12. May IEP meetings be tape-recorded?
Sec. 300.344 Participants in meetings
(Agency representative)
13. Who can serve as the representative of the public agency at an
IEP meeting?
14. Who is the representative of the public agency if a child with a
disability is served by a public agency other than the SEA or LEA?
(The child's teacher)
15. For a child with a disability being considered for initial
placement in special education, which teacher should attend the IEP
meeting?
16. If a child with a disability is enrolled in both regular and
special education classes, which teacher should attend the IEP meeting?
17. If a child with a disability in high school attends several
regular classes, must all of the child's regular teachers attend the IEP
meeting?
18. If a child's primary disability is a speech impairment, must the
child's regular teacher attend the IEP meeting?
19. If a child is enrolled in a special education class because of a
primary disability and also receives speech-language pathology services,
must both specialists attend the IEP meeting?
(The child, parents, other individuals)
20. When may representatives of teacher organizations attend IEP
meetings?
21. When may a child with a disability attend an IEP meeting?
22. Do the parents of a student with a disability retain the right
to attend the IEP meeting when the student reaches the age of majority?
23. Must related services personnel attend IEP meetings?
24. Are agencies required to use a case manager in the development
of an IEP for a child with a disability?
25. For a child with a suspected speech impairment, who must
represent the evaluation team at the IEP meeting?
Sec. 300.345 Parent participation
26. What is the role of the parents at an IEP meeting?
27. What is the role of a surrogate parent at an IEP meeting?
28. Must the public agency let the parents know who will be at the
IEP meeting?
29. Are parents required to sign IEPs?
[[Page 74]]
30. If the parent signs the IEP, does the signature indicate consent
for initial placement?
31. Do parents have the right to a copy of their child's IEP?
32. Must parents be informed at the IEP meeting of their right to
appeal?
33. Does the IEP include ways for parents to check the progress of
their children?
34. Must IEPs include specific checkpoint intervals for parents to
confer with teachers and to revise or update their children's IEPs?
35. If the parents and agency are unable to reach agreement at an
IEP meeting, what steps should be followed until agreement is reached?
Sec. 300.346 Content of the individualized education program
(Present levels of educational performance)
36. What should be included in the statement of the child's present
levels of educational performance?
(Annual goals and short term instructional objectives)
37. Why are goals and objectives required in the IEP?
38. What are annual goals in an IEP?
39. What are short term instructional objectives in an IEP?
40. Should the IEP goals and objectives focus only on special
education and related services, or should they relate to the total
education of the child?
41. Should there be a relationship between the goals and objectives
in the IEP and those that are in the instructional plans of special
education personnel?
42. When must IEP objectives be written--before placement or after
placement?
43. Can short term instructional objectives be changed without
initiating another IEP meeting?
(Specific special education and related services)
44. Must the IEP include all special education and related services
needed by the child or only those available from the public agency?
45. Is the IEP a commitment to provide services--i.e., must a public
agency provide all of the services listed in the IEP?
46. Must the public agency itself directly provide the services set
out in the IEP?
47. Does the IEP include only special education and related services
or does it describe the total education of the child?
48. If modifications are necessary for a child with a disability to
participate in a regular education program, must they be included in the
IEP?
49. When must physical education (PE) be described or referred to in
an IEP?
50. If a child with a disability is to receive vocational education,
must it be described or referred to in the student's IEP?
51. Must the IEP specify the amount of services or may it simply
list the services to be provided?
52. Must an IEP for a child with a disability indicate the extent
that the child will be educated in the regular educational program?
(Projected dates/Evaluation)
53. Can the anticipated duration of services be for more than twelve
months?
54. Must the evaluation procedures and schedules be included as a
separate item in the IEP?
(Other IEP content questions)
55. Is it permissible for an agency to have the IEP completed when
the IEP meeting begins?
56. Is there a prescribed format or length for an IEP?
57. Is it permissible to consolidate the IEP with the individualized
service plan developed under another Federal program?
58. What provisions on confidentiality of information apply to IEPs?
Sec. 300.348 Private school placements by public agencies
59. If placement decisions are made at the time the IEP is
developed, how can a private school representative attend the meeting?
Sec. 300.349 Children with disabilities enrolled in parochial or other
private schools
Sec. 300.350 Individualized education programs--accountability
60. Is the IEP a performance contract?
Authority: Part B of the Individuals with Disabilities Education Act
(20 U.S.C. 1411-1420), unless otherwise noted.
Individualized Education Programs (IEPs)
Interpretation of Requirements of Part B of the Individuals with
Disabilities Education Act
I. Purpose of the IEP
There are two main parts of the IEP requirement, as described in the
Act and regulations: (1) The IEP meeting(s), where parents and school
personnel jointly make decisions about an educational program for a
child with a disability, and (2) the IEP document itself, that is, a
written record of the decisions reached at the meeting. The overall IEP
requirement, comprised of these two parts, has a number of purposes and
functions:
[[Page 75]]
a. The IEP meeting serves as a communication vehicle between parents
and school personnel, and enables them, as equal participants, to
jointly decide what the child's needs are, what services will be
provided to meet those needs, and what the anticipated outcomes may be.
b. The IEP process provides an opportunity for resolving any
differences between the parents and the agency concerning the special
education needs of a child with a disability; first, through the IEP
meeting, and second, if necessary, through the procedural protections
that are available to the parents.
c. The IEP sets forth in writing a commitment of resources necessary
to enable a child with a disability to receive needed special education
and related services.
d. The IEP is a management tool that is used to ensure that each
child with a disability is provided special education and related
services appropriate to the child's special learning needs.
e. The IEP is a compliance/monitoring document that may be used by
authorized monitoring personnel from each governmental level to
determine whether a child with a disability is actually receiving the
FAPE agreed to by the parents and the school.
f. The IEP serves as an evaluation device for use in determining the
extent of the child's progress toward meeting the projected outcomes.
Note: The Act does not require that teachers or other school
personnel be held accountable if a child with a disability does not
achieve the goals and objectives set forth in the IEP. See Sec. 300.350,
Individualized education program--accountability.
II. IEP Requirements
This part (1) repeats the IEP requirements in Secs. 300.340-300.350
of the regulations (boxed material), (2) provides additional
clarification, as necessary, on sections or paragraphs of the
regulations on which such clarification is needed, and (3) answers some
questions regarding implementation of the IEP requirements that are not
expressly addressed in the regulations. These questions and clarifying
information are presented in a question and answer format immediately
after the particular section of the regulations that is presented.
Sec. 300.340 Definitions.
(a) As used in this part, the term individualized education program
means a written statement for a child with a disability that is
developed and implemented in accordance with Secs. 300.341-300.350.
(b) As used in Secs. 300.346 and 300.347, 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(a)(20))
Sec. 300.341 State educational agency responsibility.
(a) Public agencies. The SEA shall ensure that each public agency
develops and implements an IEP for each of its children with
disabilities.
(b) Private schools and facilities. The SEA shall ensure that an IEP
is developed and implemented for each child with a disability who--
(1) Is placed in or referred to a private school or facility by a
public agency; or
(2) Is enrolled in a parochial school or other private school and
receives special education or related services from a public agency.
(Authority: 20 U.S.C. 1412(4), (6); 1413(a)(4))
Note: This section applies to all public agencies, including other
State agencies (e.g., departments of mental health and welfare) that
provide special education to a child with a disability either directly,
by contract or through other arrangements. Thus, if a State welfare
agency contracts with a private school or facility to provide special
education to a child with a disability, that agency would be responsible
for ensuring that an IEP is developed for the child.
1. Who is responsible for ensuring the development of IEPs for
children with disabilities served by a public agency other than an LEA?
The answer will vary from State to State, depending upon State law,
policy, or practice. In each State, however, the SEA is ultimately
responsible for ensuring that each agency in the State is in compliance
with the IEP requirements and the other provisions of the Act and
regulations. (See Sec. 300.600 regarding SEA responsibility for all
education programs.)
The SEA must ensure that every child with a disability in the State
has FAPE available, regardless of which agency, State or local, is
responsible for the child. While the SEA has flexibility in deciding the
best means to meet this obligation (e.g., through interagency
agreements), there can be no failure to provide FAPE due to
jurisdictional disputes among agencies.
Note: Section 300.2(b) states that the requirements of the Act and
regulations apply to all political subdivisions of the State that are
involved in the education of children with disabilities, including (1)
the SEA, (2) LEAs, (3) other State agencies (such as Departments of
Mental Health and Welfare, and State schools for students with deafness
or students with blindness), and (4) State correctional facilities.
[[Page 76]]
The following paragraphs outline (1) some of the SEA's
responsibilities for developing policies or agreements under a variety
of interagency situations, and (2) some of the responsibilities of an
LEA when it initiates the placement of a child with a disability in a
school or program operated by another State agency:
a. SEA POLICIES OR INTERAGENCY AGREEMENTS. The SEA, through its
written policies or agreements, must ensure that IEPs are properly
written and implemented for all children with disabilities in the State.
This applies to each interagency situation that exists in the State,
including any of the following:
(1) When an LEA initiates the placement of a child in a school or
program operated by another State agency (see ``LEA-Initiated
Placements'' in paragraph ``b'', below); (2) when a State or local
agency other than the SEA or LEA places a child in a residential
facility or other program; (3) when parents initiate placements in
public institutions; and (4) when the courts make placements in
correctional facilities.
Note: This is not an exhaustive list. The SEA's policies must cover
any other interagency situation that is applicable in the State,
including placements that are made for both educational and for non-
educational purposes.
Frequently, more than one agency is involved in developing or
implementing an IEP of a child with a disability (e.g., when the LEA
remains responsible for the child, even though another public agency
provides the special education and related services, or when there are
shared cost arrangements). It is important that SEA policies or
agreements define the role of each agency involved in the situations
described above, in order to resolve any jurisdictional problems that
could delay the provision of FAPE to a child with a disability. For
example, if a child is placed in a residential facility, any one or all
of the following agencies might be involved in the development and/or
implementation of the child's IEP: The child's LEA, the SEA, another
State agency, an institution or school under that agency, and the LEA
where the institution is located.
Note: The SEA must also ensure that any agency involved in the
education of a child with a disability is in compliance with the LRE
provisions of the Act and regulations, and, specifically, with the
requirement that the placement of each child with a disability (1) be
determined at least annually, (2) be based on the child's IEP, and (3)
be as close as possible to the child's home (Sec. 300.552(a),
Placements.)
b. LEA-INITIATED PLACEMENTS. When an LEA is responsible for the
education of a child with a disability, the LEA is also responsible for
developing the child's IEP. The LEA has this responsibility even if
development of the IEP results in placement in a State-operated school
or program.
Note: The IEP must be developed before the child is placed. (See
Question 5, below.) When placement in a State-operated school is
necessary, the affected State agency or agencies must be involved by the
LEA in the development of the IEP. (See response to Question 59, below,
regarding participation of a private school representative at the IEP
meeting.)
After the child enters the State school, meetings to review or
revise the child's IEP could be conducted by either the LEA or the State
school, depending upon State law, policy, or practice. However, both
agencies should be involved in any decisions made about the child's IEP
(either by attending the IEP meetings, or through correspondence or
telephone calls). There must be a clear decision, based on State law, as
to whether responsibility for the child's education is transferred to
the State school or remains with the LEA, since this decision determines
which agency is responsible for reviewing or revising the child's IEP.
2. For a child placed out of State by a public agency, is the
placing or receiving State responsible for the child's IEP?
The ``placing'' State is responsible for developing the child's IEP
and ensuring that it is implemented. The determination of the specific
agency in the placing State that is responsible for the child's IEP
would be based on State law, policy, or practice. However, as indicated
in Question 1, above, the SEA in the placing State is responsible for
ensuring that the child has FAPE available.
Sec. 300.342 When individualized education programs must be in effect.
(a) At the beginning of each school year, each public agency shall
have in effect an IEP for every child with a disability who is receiving
special education from that agency.
(b) An IEP must--
(1) Be in effect before special education and related services are
provided to a child; and
(2) Be implemented as soon as possible following the meetings under
Sec. 300.343.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5); Pub. L. 94-142,
sec. 8(c) (1975))
Note: Under paragraph (b)(2) of this section, it is expected that
the IEP of a child with a disability will be implemented immediately
following the meetings under Sec. 300.343. An exception to this would be
(1) when the meetings occur during the summer or a vacation period, or
(2) where there are circumstances that require a short delay (e.g.,
working out transportation arrangements). However, there can be no undue
[[Page 77]]
delay in providing special education and related services to the child.
3. In requiring that an IEP be in effect before special education
and related services are provided, what does ``be in effect'' mean?
As used in the regulations, the term be in effect means that the IEP
(1) has been developed properly (i.e., at a meeting(s) involving all of
the participants specified in the Act (parent, teacher, agency
representative, and, if appropriate, the child)); (2) is regarded by
both the parents and agency as appropriate in terms of the child's
needs, specified goals and objectives, and the services to be provided;
and (3) will be implemented as written.
4. How much of a delay is permissible between the time an IEP of a
child with a disability is finalized and when special education is
provided?
In general, no delay is permissible. It is expected that the special
education and related services set out in a child's IEP will be provided
by the agency beginning immediately after the IEP is finalized. The Note
following Sec. 300.342 identifies some exceptions ((1) when the meetings
occur during the summer or other vacation period, or (2) when there are
circumstances that require a short delay, such as working out
transportation arrangements). However, unless otherwise specified in the
IEP, the IEP services must be provided as soon as possible following the
meeting.
Note: Section 300.346(a)(4) requires that the IEP include the
projected dates for initiation of services.
5. For a child with a disability receiving special education for the
first time, when must an IEP be developed -- before placement or after
placement?
An IEP must be in effect before special education and related
services are provided to a child. (Sec. 300.342(b)(1), emphasis added.)
The appropriate placement for a given child with a disability cannot be
determined until after decisions have been made about what the child's
needs are and what will be provided. Since these decisions are made at
the IEP meeting, it would not be permissible to first place the child
and then develop the IEP. Therefore, the IEP must be developed before
placement. The above 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 aid in determining
the most appropriate placement for the child. It is essential that the
temporary placement not become the final placement before the IEP is
finalized. In order to ensure that this does not happen, the State might
consider requiring LEAs to take the following actions:
a. Develop an interim IEP for the child that sets out the specific
conditions and timelines for the trial placement. (See paragraph ``c'',
below.)
b. Ensure that the parents agree to the interim placement before it
is carried out, and that they are involved throughout the process of
developing, reviewing, and revising the child's IEP.
c. Set a specific timeline (e.g., 30 days) for completing the
evaluation and making judgments about the most appropriate placement for
the child.
d. Conduct an IEP meeting at the end of the trial period in order to
finalize the child's IEP.
Note: Once the IEP of the child with a disability is in effect and
the child is placed in a special education program, the teacher might
develop detailed lesson plans or objectives based on the IEP. However,
these lesson plans and objectives are not required to be a part of the
IEP itself. (See Questions 3743, below, regarding IEP goals and
objectives.)
6. If a child with a disability has been receiving special education
in one LEA and moves to another community, must the new LEA hold an IEP
meeting before the child is placed in a special education program?
It would not be necessary for the new LEA to conduct an IEP meeting
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
LEA 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 LEA or
the parent believes that it is not appropriate, an IEP meeting would
have to be conducted. This meeting should take place within a short time
after the child enrolls in the new LEA (normally, within one week).
Note: The child must be placed in a special education program
immediately after the IEP is finalized. (See Question 4, above.)
If the LEA or the parents believe that additional information is
needed (e.g., the school records from the former LEA) or that a new
evaluation is necessary before a final placement decision can be made,
it would be permissible to temporarily place the child in an interim
program before the IEP is finalized. (See Question 5, above.)
Sec. 300.343 Meetings.
(a) General. Each public agency is responsible for initiating and
conducting meetings for the purpose of developing, reviewing, and
revising the IEP of a child with a disability (or, if consistent with
State policy and at the discretion of the LEA, and with the concurrence
of the parents, an individualized family service plan described in
section 677(d) of the Act for each child with a disability, aged 3
through 5).
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(b) [Reserved]
(c) Timeline. A meeting to develop an IEP for a child must be held
within 30 calendar days of a determination that the child needs special
education and related services.
(d) Review. Each public agency shall initiate and conduct meetings
to review each child's IEP periodically and, if appropriate, revise its
provisions. A meeting must be held for this purpose at least once a
year.
(Authority: 20 U.S.C. 1412(2)(B), (4), (6); 1414(a)(5))
Note: The date on which agencies must have IEPs in effect is
specified in Sec. 300.342 (the beginning of each school year). However,
except for new children with disabilities (i.e., those evaluated and
determined to need special education and related services for the first
time), the timing of meetings to develop, review, and revise IEPs is
left to the discretion of each agency. In order to have IEPs in effect
at the beginning of the school year, agencies could hold meetings either
at the end of the preceding school year or during the summer prior to
the next school year. Meetings may be held any time throughout the year,
as long as IEPs are in effect at the beginning of each school year.
The statute requires agencies to hold a meeting at least once each
year in order to review and, if appropriate, revise each child's IEP.
The timing of those meetings could be on the anniversary date of the
child's last IEP meeting, but this is left to the discretion of the
agency.
7. What is the purpose of the 30 day timeline in Sec. 300.343(c)?
The 30 day timeline in Sec. 300.343(c) ensures that there will not
be a significant delay between the time a child is evaluated and when
the child begins to receive special education. Once it is determined--
through the evaluation--that a child has a disability, the public agency
has up to 30 days to hold an IEP meeting.
Note: See Questions 4 and 5, above, regarding finalization of IEP
and placement of the child.
8. Must the agency hold a separate meeting to determine a child's
eligibility for special education and related services, or can this step
be combined with the IEP meeting?
Paragraph (e) of Sec. 300.532 (Evaluation procedures) provides that
the evaluation of each child with a disability must be ``made by a
multidisciplinary team or group of persons * * *''. The decisions
regarding (1) whether the team members actually meet together, and (2)
whether such meetings are separate from the IEP meeting are matters that
are left to the discretion of State or local agencies.
In practice, some agencies hold separate eligibility meetings with
the multidisciplinary team before the IEP meeting.
Note: When separate meetings are conducted, placement decisions
would be made at the IEP meeting. However, placement options could be
discussed at the eligibility meeting.
Other agencies combine the two steps into one. If a combined meeting
is conducted, the public agency must include the parents as participants
at the meeting. (See Sec. 300.345 for requirements on parent
participation.)
Note: If, at a separate eligibility meeting, a decision is made that
a child is not eligible for special education, the parents should be
notified about the decision.
9. Must IEPs be reviewed or revised at the beginning of each school
year?
No. The basic requirement in the regulations is that IEPs must be in
effect at the beginning of each school year. Meetings must be conducted
at least once each year to review and, if necessary, revise the IEP of
each child with a disability. However, the meetings may be held anytime
during the year, including (1) at the end of the school year, (2) during
the summer, before the new school year begins, or (3) on the anniversary
date of the last IEP meeting on the child.
10. How frequently must IEP meetings be held and how long should
they be?
Section 614(a)(5) of the Act provides that each public agency must
hold meetings periodically, but not less than annually, to review each
child's IEP and, if appropriate, revise its provisions. The legislative
history of the Act 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))
There is no prescribed length for IEP meetings. In general, meetings
(1) will be longer for initial placements and for children who require a
variety of complex services, and (2) will be shorter for continuing
placements and for children who require only a minimum amount of
services. In any event, however, it is expected that agencies will allow
sufficient time at the meetings to ensure meaningful parent
participation.
11. Who can initiate IEP meetings?
IEP meetings are initiated and conducted at the discretion of the
public agency. However, if the parents of a child with a disability
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. The public agency should grant
any reasonable request for such a meeting.
Note: Under Sec. 300.506(a), the parents or agency may initiate a
due process hearing at any time regarding any matter related to the
child's IEP.
If a child's teacher(s) feels that the child's placement or IEP
services are not appropriate to the child, the teacher(s) should follow
agency procedures with respect to (1)
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calling or meeting with the parents and/or (2) requesting the agency to
hold another meeting to review the child's IEP.
12. May IEP meetings be tape-recorded?
The use of tape recorders at IEP meetings is not addressed by either
the Act or the regulations. Although taping is clearly not required, it
is permissible at the option of either the parents or the agency.
However, if the recording is maintained by the agency, it 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 (34 CFR Secs. 300.560-300.575).
Sec. 300.344 Participants in meetings.
(a) General. The public agency shall ensure that each meeting
includes the following participants:
(1) A representative of the public agency, other than the child's
teacher, who is qualified to provide, or supervise the provision of,
special education.
(2) The child's teacher.
(3) One or both of the child's parents, subject to Sec. 300.345.
(4) The child, if appropriate.
(5) Other individuals at the discretion of the parent or agency.
(b) Evaluation personnel. For a child with a disability who has been
evaluated for the first time, the public agency shall ensure--
(1) That a member of the evaluation team participates in the
meeting; or
(2) That the representative of the public agency, the child's
teacher, or some other person is present at the meeting, who is
knowledgeable about the evaluation procedures used with the child and is
familiar with the results of the evaluation.
(c) Transition services participants. (1) If a purpose of the
meeting is the consideration of transition services for a student, the
public agency shall invite--
(i) The student; and
(ii) A representative of any other agency that is likely to be
responsible for providing or paying for transition services.
(2) If the student does not attend, the public agency shall take
other steps to ensure that the student's preferences and interests are
considered; and
(3) If an agency invited to send a representative to a meeting does
not do so, the public agency shall take other steps to obtain the
participation of the other agency in the planning of any transition
services.
(Authority: 20 U.S.C. 1401 (a)(19), (a)(20); 1412(2)(B), (4), (6);
1414(a)(5))
Note 1: In deciding which teacher will participate in meetings on a
child's IEP, the agency may wish to consider the following
possibilities:
(a) For a child with a disability who is receiving special
education, the teacher could be the child's special education teacher.
If the child's disability is a speech impairment, the teacher could be
the speech-language pathologist.
(b) For a child with a disability who is being considered for
placement in special education, the teacher could be the child's regular
teacher, or a teacher qualified to provide education in the type of
program in which the child may be placed, or both.
(c) If the child is not in school or has more than one teacher, the
agency may designate which teacher will participate in the meeting.
Either the teacher or the agency representative should be qualified
in the area of the child's suspected disability.
For a child whose primary disability is a speech or language
impairment, the evaluation personnel participating under paragraph
(b)(1) of this section would normally be the speech-language
pathologist.
Note 2: Under paragraph (c), the public agency is required to invite
each student to participate in his or her IEP meeting, if a purpose of
the meeting is the consideration of transition services for the student.
For all students who are 16 years of age or older, one of the purposes
of the annual meeting will always be the planning of transition
services, since transition services are a required component of the IEP
for these students.
For a student younger than age 16, if transition services are
initially discussed at a meeting that does not include the student, the
public agency is responsible for ensuring that, before a decision about
transition services for the student is made, a subsequent IEP meeting is
conducted for that purpose, and the student is invited to the meeting.
13. Who can serve as the representative of the public agency at an
IEP meeting?
The representative of the public agency could be any member of the
school staff, other than the child's teacher, who is qualified to
provide, or supervise the provision of, specially designed instruction
to meet the unique needs of children with disabilities. (Section
602(a)(20) of the Act.) Thus, the agency representative could be (1) a
qualified special education administrator, supervisor, or teacher
(including a speech-language pathologist), or (2) a school principal or
other administrator--if the person is qualified to provide, or supervise
the provision of, special education.
Each State or local agency may determine which specific staff member
will serve as the agency representative. However, the representative
should be able to ensure that whatever services are set out in the IEP
will actually be provided and that the IEP will not be vetoed at a
higher administrative
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level within the agency. Thus, the person selected should have the
authority to commit agency resources (i.e., to make decisions about the
specific special education and related services that the agency will
provide to a particular child).
For a child with a disability who requires only a limited amount of
special education, the agency representative able to commit appropriate
resources could be a special education teacher, or a speech-language
pathologist, other than the child's teacher. For a child who requires
extensive special education and related services, the agency
representative might need to be a key administrator in the agency.
Note: IEP meetings for continuing placements could be more routine
than those for initial placements, and, thus, might not require the
participation of a key administrator.
14. Who is the representative of the public agency if a child with a
disability is served by a public agency other than the SEA or LEA?
The answer depends on which agency is responsible, under State law,
policy, or practice, for any one or all of the following:
(1) The child's education, (2) placing the child, and (3) providing
(or paying for the provision of) special education and related services
to the child.
In general, the agency representative at the IEP meeting would be a
member of the agency or institution that is responsible for the child's
education. For example, if a State agency (1) places a child in an
institution, (2) is responsible under State law for the child's
education, and (3) has a qualified special education staff at the
institution, then a member of the institution's staff would be the
agency representative at the IEP meetings.
Sometimes there is no special education staff at the institution,
and the children are served by special education personnel from the LEA
where the institution is located. In this situation, a member of the LEA
staff would usually serve as the agency representative.
Note: In situations where the LEA places a child in an institution,
paragraph ``b'' of the response to Question 1, above, would apply.
15. For a child with a disability being considered for initial
placement in special education, which teacher should attend the IEP
meeting?
The teacher could be either (1) a teacher qualified to provide
special education in the child's area of suspected disability, or (2)
the child's regular teacher. At the option of the agency, both teachers
could attend. In any event, there should be at least one member of the
school staff at the meeting (e.g., the agency representative or the
teacher) who is qualified in the child's area of suspected disability.
Note: Sometimes more than one meeting is necessary in order to
finalize a child's IEP. If, in this process, the special education
teacher who will be working with the child is identified, it would be
useful to have that teacher participate in the meeting with the parents
and other members of the IEP team in finalizing the IEP. When this is
not possible, the agency should ensure that the teacher is given a copy
of the child's IEP as soon as possible after the IEP is finalized and
before the teacher begins working with the child.
16. If a child with a disability is enrolled in both regular and
special education classes, which teacher should attend the IEP meeting?
In general, the teacher at the IEP meeting should be the child's
special education teacher. At the option of the agency or the parent,
the child's regular teacher also might attend. If the regular teacher
does not attend, the agency should either provide the regular teacher
with a copy of the IEP or inform the regular teacher of its contents.
Moreover, the agency should ensure that the special education teacher,
or other appropriate support person, is able, as necessary, to consult
with and be a resource to the child's regular teacher.
17. If a child with a disability in high school attends several
regular classes, must all of the child's regular teachers attend the IEP
meeting?
No. Only one teacher must attend. However, at the option of the LEA,
additional teachers of the child may attend. The following points should
be considered in making this decision:
a. Generally, the number of participants at IEP meetings should be
small. Small meetings have several advantages over large ones. For
example, they (1) allow for more open, active parent involvement, (2)
are less costly, (3) are easier to arrange and conduct, and (4) are
usually more productive.
b. While large meetings are generally inappropriate, there may be
specific circumstances where the participation of additional staff would
be beneficial. When the participation of the regular teachers is
considered by the agency or the parents to be beneficial to the child's
success in school (e.g., in terms of the child's participation in the
regular education program), it would be appropriate for them to attend
the meeting.
c. Although the child's regular teachers would not routinely attend
IEP meetings, they should either (1) be informed about the child's IEP
by the special education teacher or agency representative, and/or (2)
receive a copy of the IEP itself.
18. If a child's primary disability is a speech impairment, must the
child's regular teacher attend the IEP meeting?
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No. A speech-language pathologist would usually serve as the child's
teacher for purposes of the IEP meeting. The regular teacher could also
attend at the option of the school.
19. If a child is enrolled in a special education class because of a
primary disability, and also receives speech-language pathology
services, must both specialists attend the IEP meeting?
No. It is not required that both attend. The special education
teacher would attend the meeting as the child's teacher. The speech-
language pathologist could either (1) participate in the meeting itself,
or (2) provide a written recommendation concerning the nature,
frequency, and amount of services to be provided to the child.
20. When may representatives of teacher organizations attend IEP
meetings?
Under the Family Educational Rights and Privacy Act (``FERPA''; 20
U.S.C. 1232g) and implementing regulations (34 CFR part 99) and the
confidentiality requirements of part B, officials of teacher
organizations may not attend IEP meetings if personally identifiable
information from the student's education records is discussed--except
with the prior written consent of the parents. (See 34 CFR 99.30(a) and
300.571(a)(1).)
In addition, part B does not provide for the participation of
representatives of teacher organizations at IEP meetings. The
legislative history of the Act makes it clear that attendance at IEP
meetings should be limited to those who have an intense interest in the
child. (121 Cong. Rec. S10974 (June 18, 1975) (remarks of Sen.
Randolph).) Since a representative of a teacher organization would be
concerned with the interests of the teacher rather than the interests of
the child, it would be inappropriate for such an official to attend an
IEP meeting.
21. When may a child with a disability attend an IEP meeting?
Generally, a child with a disability should attend the IEP meeting
whenever the parent decides that it is appropriate for the child to do
so. Whenever possible, the agency and parents should discuss the
appropriateness of the child's participation before a decision is made,
in order to help the parents determine whether or not the child's
attendance will be (1) helpful in developing the IEP and/or (2) directly
beneficial to the child. The agency should inform the parents before
each IEP meeting--as part of the notice of meeting required under
Sec. 300.345(b)--that they may invite their child to participate.
Note: The parents and agency should encourage older children with
disabilities (particularly those at the secondary school level) to
participate in their IEP meetings.
22. Do the parents of a student with a disability retain the right
to attend the IEP meeting when the student reaches the age of majority?
The Act is silent concerning any modification of the rights of the
parents of a student with a disability when the student reaches the age
of majority.
23. Must related services personnel attend IEP meetings?
No. It is not required that they attend. However, 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. For example, when the
child's evaluation indicates the need for a specific related service
(e.g., physical therapy, occupational therapy, 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.
Note: This written recommendation could be a part of the evaluation
report.
24. Are agencies required to use a case manager in the development
of the IEP of a child with a disability?
No. However, some agencies have found it helpful to have a special
educator or some other school staff member (e.g., a social worker,
counselor, or psychologist) serve as coordinator or case manager of the
IEP process for an individual child or for all children with
disabilities served by the agency. Examples of the kinds of activities
that case managers might carry out are (1) coordinating the
multidisciplinary evaluation; (2) collecting and synthesizing the
evaluation reports and other relevant information about a child that
might be needed at the IEP meeting; (3) communicating with the parents;
and (4) participating in, or conducting, the IEP meeting itself.
25. For a child with a suspected speech impairment, who must
represent the evaluation team at the IEP meeting?
No specific person must represent the evaluation team. However, a
speech-language pathologist would normally be the most appropriate
representative. For many children whose primary disability is a speech
impairment, there may be no other evaluation personnel involved. The
note following Sec. 300.532 (Evaluation procedures) states:
Children who have a speech impairment as their primary disability
may not need a complete battery of assessments (e.g., psychological,
physical, or adaptive behavior). However, a qualified speech-language
pathologist would (1) evaluate each child with a speech impairment using
procedures that are appropriate for the diagnosis and appraisal of
speech and language impairments, and (2) if
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necessary, make referrals for additional assessments needed to make an
appropriate placement decision.
Sec. 300.345 Parent participation.
(a) Each public agency shall take steps to ensure that one or both
of the parents of the child with a disability are present at each
meeting or are afforded the opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b)(1) The notice under paragraph (a)(1) of this section must
indicate the purpose, time, and location of the meeting and who will be
in attendance;
(2) If a purpose of the meeting is the consideration of transition
services for a student, the notice must also--
(i) Indicate this purpose;
(ii) Indicate that the agency will invite the student; and
(iii) Identify any other agency that will be invited to send a
representative.
(c) If neither parent can attend, the public agency shall use other
methods to ensure parent participation, including individual or
conference telephone calls.
(d) A meeting may be conducted without a parent in attendance if the
public agency is unable to convince the parents that they should attend.
In this case the public agency must have a record of its attempts to
arrange a mutually agreed on time and place such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(e) The public agency shall take whatever action is necessary to
ensure that the parent understands the proceedings at a meeting,
including arranging for an interpreter for parents with deafness or
whose native language is other than English.
(f) The public agency shall give the parent, on request, a copy of
the IEP.
(Authority: 20 U.S.C. 1401(a)(20); 1412 (2)(B), (4), (6); 1414(a)(5))
Note: The notice in paragraph (a) of this section could also inform
parents that they may bring other people to the meeting. As indicated in
paragraph (c) of this section, the procedure used to notify parents
(whether oral or written or both) is left to the discretion of the
agency, but the agency must keep a record of its efforts to contact
parents.
26. What is the role of the parents at an IEP meeting? The parents
of a child with a disability are expected to be equal participants along
with school personnel, in developing, reviewing, and revising the
child's IEP. This is an active role in which the parents (1) participate
in the discussion about the child's need for special education and
related services, and (2) join with the other participants in deciding
what services the agency will provide to the child.
Note: 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.
27. What is the role of a surrogate parent at an IEP meeting?
A surrogate parent is a person appointed to represent the interests
of a child with a disability in the educational decision-making process
when that child has no other parent representation. The surrogate has
all of the rights and responsibilities of a parent under part B. Thus,
the surrogate parent is entitled to (1) participate in the child's IEP
meeting, (2) see the child's education records, and (3) receive notice,
grant consent, and invoke due process to resolve differences. (See
Sec. 300.514, Surrogate parents.)
28. Must the public agency let the parents know who will be at the
IEP meeting?
Yes. In notifying parents about the meeting, the agency ``must
indicate the purpose, time, and location of the meeting, and who will be
in attendance.'' (Sec. 300.345(b), emphasis added.) If possible, the
agency should give the name and position of each person who will attend.
In addition, the agency should inform the parents of their right to
bring other participants to the meeting. (See Question 21, above,
regarding participation of the child.) It is also appropriate for the
agency to ask whether the parents intend to bring a participant to the
meeting.
29. Are parents required to sign IEPs? Parent signatures are not
required by either the Act or regulations. However, having such
signatures is considered by parents, advocates, and public agency
personnel to be useful.
The following are some of the ways that IEPs signed by parents and/
or agency personnel might be used:
a. A signed IEP is one way to document who attended the meeting.
Note: This is useful for monitoring and compliance purposes.
If signatures are not used, the agency must document attendance in
some other way.
b. An IEP signed by the parents is one way to indicate that the
parents approved the child's special education program.
Note: If, after signing, the parents feel that a change is needed in
the IEP, it would
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be appropriate for them to request another meeting. See Question 11,
above.
c. An IEP signed by an agency representative provides the parents a
signed record of the services that the agency has agreed to provide.
Note: Even if the school personnel do not sign, the agency still
must provide, or ensure the provision of, the services called for in the
IEP.
30. If the parent signs the IEP, does the signature indicate consent
for initial placement?
The parent's signature on the IEP would satisfy the consent
requirement concerning initial placement of the child
(Sec. 300.504(b)(1)(ii)) only if the IEP includes a statement on initial
placement that meets the definition of consent in Sec. 300.500:
Consent means that: (a) the parent has been fully informed of all
information relevant to the activity for which consent is sought * * *
(b) 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
(c) The parent understands that the granting of consent is voluntary
* * * and may be revoked at any time.
31. Do parents have the right to a copy of their child's IEP?
Yes. Section 300.345(f) states that the public agency shall give the
parent, on request, a copy of the IEP. In order that parents may know
about this provision, it is recommended that they be informed about it
at the IEP meeting and/or receive a copy of the IEP itself within a
reasonable time following the meeting.
32. Must parents be informed at the IEP meeting of their right to
appeal?
If the agency has already informed the parents of their right to
appeal, as it is required to do under the prior notice provisions of the
regulations (Secs. 300.504-300.505), it would not be necessary for the
agency to do so again at the IEP meeting.
Section 300.504(a) of the regulations states that ``written notice
that meets the requirements under Sec. 300.505 must be given to parents
a reasonable time'' before 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.''
Section 300.505(a) states that the notice must include ``(1) A full
explanation of all of the procedural safeguards available to the parents
under Sec. 300.500, Secs. 300.502-300.515, and Secs. 300.562-300.569.''
The IEP meeting serves as a communication vehicle between parents
and school personnel, and enables them, as equal participants, to
jointly decide upon what the child's needs are, what will be provided,
and what the anticipated outcomes may be. If, during the IEP meeting,
parents and school staff are unable to reach agreement, the agency
should remind the parents that they may seek to resolve their
differences through the due process procedures under the Act.
Note: Section 300.506(a) states that ``a parent or public
educational agency may initiate a hearing on any matters described in
Sec. 300.504(a) (1) and (2).''
Every effort should be made to resolve differences between parents
and school staff without resort to a due process hearing (i.e., through
voluntary mediation or some other informal step). However, mediation or
other informal procedures may not be used to deny or delay a parent's
right to a due process hearing. (See Sec. 300.506. Impartial due process
hearing.)
33. Does the IEP include ways for parents to check the progress of
their children?
In general, the answer is yes. The IEP document is a written record
of decisions jointly made by parents and school personnel at the IEP
meeting regarding the special education program of a child with a
disability. That record includes agreed upon items, such as goals and
objectives, and the specific special education and related services to
be provided to the child.
The goals and objectives in the IEP should be helpful to both
parents and school personnel, in a general way, in checking on a child's
progress in the special education program. (See Questions 37-43, below,
regarding goals and objectives in the IEP.) However, since the IEP is
not intended to include the specifics about a child's total educational
program that are found in daily, weekly, or monthly instructional plans,
parents will often need to obtain more specific, on-going information
about the child's progress--through parent-teacher conferences, report
cards and other reporting procedures ordinarily used by the agency.
34. Must IEPs include specific checkpoint intervals for parents to
confer with teachers and to revise or update their children's IEPs?
No. The IEP of a child with a disability is not required to include
specific ``checkpoint intervals'' (i.e., meeting dates) for reviewing
the child's progress. However, in individual situations, specific
meeting dates could be designated in the IEP, if the parents and school
personnel believe that it would be helpful to do so.
Although meeting dates are not required to be set out in the IEP
itself, there are specific provisions in the regulations and in this
document regarding agency responsibilities in initiating IEP meetings,
including the following:
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(1) Public agencies must hold meetings periodically, but not less
than annually, to review, and if appropriate, revise, each child's IEP
(Sec. 300.343(d)); (2) there should be as many meetings a year as the
child needs (see Question 10, above); and (3) agencies should grant any
reasonable parental request for an IEP meeting (see Question 11, above).
In addition to the above provisions, it is expected that, through an
agency's general reporting procedures for all children in school, there
will be specific designated times for parents to review their children's
progress (e.g., through periodic parent-teacher conferences, and/or the
use of report cards, letters, or other reporting devices).
35. If the parents and agency are unable to reach agreement at an
IEP meeting, what steps should be followed until agreement is reached?
As a general rule, the agency and parents would agree to an interim
course of action for serving the child (i.e., in terms of placement and/
or services) to be followed until the area of disagreement over the IEP
is resolved. The manner in which this interim measure is developed and
agreed to by both parties is left to the discretion of the individual
State or local agency. However, if the parents and agency cannot agree
on an interim measure, the child's last agreed upon IEP would remain in
effect in the areas of disagreement until the disagreement is resolved.
The following may be helpful to agencies if there are disagreements:
a. There may be instances where the parents and agency are in
agreement about the basic IEP services (e.g., the child's placement and/
or the special education services), but disagree about the provision of
a particular related service (i.e., whether the service is needed and/or
the amount to be provided). In such cases, it is recommended (1) that
the IEP be implemented in all areas where there is agreement, (2) that
the document indicate the points of disagreement, and (3) that
procedures be initiated to resolve the disagreement.
b. Sometimes the disagreement is with the placement or kind of
special education to be provided (e.g., one party proposes a self-
contained placement, and the other proposes resource room services). In
such cases, the agency might, for example, carry out any one or all of
the following steps:
(1) Remind the parents that they may resolve their differences
through the due process procedures under part B; (2) work with the
parents to develop an interim course of action (in terms of placement
and/or services) that both parties can agree to until resolution is
reached; and (3) recommend the use of mediation, or some other informal
procedure for resolving the differences without going to a due process
hearing. (See Question 32, above, regarding the right to appeal.)
c. If, because of the disagreement over the IEP, a hearing is
initiated by either the parents or agency, the agency may not change the
child's placement unless the parents and agency agree otherwise. (See
Sec. 300.513, Child's status during proceedings.) The following two
examples are related to this requirement:
(1) A child in the regular fourth grade has been evaluated and found
to be eligible for special education. The agency and parents agree that
the child has a specific learning disability. However, one party
proposes placement in a self-contained program, and the other proposes
placement in a resource room. Agreement cannot be reached, and a due
process hearing is initiated. Unless the parents and agency agree
otherwise, the child would remain in the regular fourth grade until the
issue is resolved.
On the other hand, since the child's need for special education is
not in question, both parties might agree--as an interim measure--(1) to
temporarily place the child in either one of the programs proposed at
the meeting (self-contained program or resource room), or (2) to serve
the child through some other temporary arrangement.
(2) A child with a disability is currently receiving special
education under an existing IEP. A due process hearing has been
initiated regarding an alternative special education placement for the
child. Unless the parents and agency agree otherwise, the child would
remain in the current placement. In this situation, the child's IEP
could be revised, as necessary, and implemented in all of the areas
agreed to by the parents and agency, while the area of disagreement
(i.e., the child's placement) is being settled through due process.
Note: If the due process hearing concerns whether or not a
particular service should continue to be provided under the IEP (e.g.,
physical therapy), that service would continue to be provided to the
child under the IEP that was in effect at the time the hearing was
initiated, (1) unless the parents and agency agree to a change in the
services, or (2) until the issue is resolved.
Sec. 300.346 Content of individualized education program.
(a) General. The IEP for each child must include--
(1) A statement of the child's present levels of educational
performance;
(2) A statement of annual goals, including short-term instructional
objectives;
(3) A statement of the specific special education and related
services to be provided to the child and the extent that the child will
be able to participate in regular educational programs;
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(4) The projected dates for initiation of services and the
anticipated duration of the services; and
(5) Appropriate objective criteria and evaluation procedures and
schedules for determining, on at least an annual basis, whether the
short term instructional objectives are being achieved.
(b) Transition services. (1) The IEP for each student, beginning no
later than age 16 (and at a younger age, if determined appropriate),
must include a statement of the needed transition services as defined in
Sec. 300.18, including, if appropriate, a statement of each public
agency's and each participating agency's responsibilities or linkages,
or both, before the student leaves the school setting.
(2) If the IEP team determines that services are not needed in one
or more of the areas specified in Sec. 300.18(b)(2)(i) through
(b)(2)(iii), the IEP must include a statement to that effect and the
basis upon which the determination was made.
(Authority: 20 U.S.C. 1401(a)(19), (a)(20); 1412(2)(B), (4), (6);
1414(a)(5))
Note 1: The legislative history of the transition services
provisions of the Act suggests that the statement of needed transition
services referred to in paragraph (b) of this section should include a
commitment by any participating agency to meet any financial
responsibility it may have in the provision of transition services. See
House Report No. 101-544, p. 11 (1990).
Note 2: With respect to the provisions of paragraph (b) of this
section, it is generally expected that the statement of needed
transition services will include the areas listed in
Sec. 300.18(b)(2)(i) through (b)(2)(iii). If the IEP team determines
that services are not needed in one of those areas, the public agency
must implement the requirements in paragraph (b)(2) of this section.
Since it is a part of the IEP, the IEP team must reconsider its
determination at least annually.
Note 3: Section 602(a)(20) of the Act provides that IEPs must
include a statement of needed transition services for students beginning
no later than age 16, but permits transition services to students below
age 16 (i.e., ``* * * and, when determined appropriate for the
individual, beginning at age 14 or younger.''). Although the statute
does not mandate transition services for all students beginning at age
14 or younger, the provision of these services could have a
significantly positive effect on the employment and independent living
outcomes for many of these students in the future, especially for
students who are likely to drop out before age 16. With respect to the
provision of transition services to students below age 16, the Report of
the House Committee on Education and Labor on Pub. L. 101-476 includes
the following statement:
Although this language leaves the final determination of when to
initiate transition services for students under age 16 to the IEP
process, it nevertheless makes clear that Congress expects consideration
to be given to the need for transition services for some students by age
14 or younger. The Committee encourages that approach because of their
concern that age 16 may be too late for many students, particularly
those at risk of dropping out of school and those with the most severe
disabilities. Even for those students who stay in school until age 18,
many will need more than two years of transitional services. Students
with disabilities are now dropping out of school before age 16, feeling
that the education system has little to offer them. Initiating services
at a younger age will be critical. (House Report No. 101-544, 10
(1990).)
36. What should be included in the statement of the child's present
levels of educational performance?
The statement of present levels of educational performance will be
different for each child with a disability. Thus, determinations about
the content of the statement for an individual child are matters that
are left to the discretion of participants in the IEP meetings. However,
the following are some points that should be taken into account in
writing this part of the IEP:
a. The statement should accurately describe the effect of the
child's disability on the child's performance in any area of education
that is affected, including (1) academic areas (reading, math,
communication, etc.), and (2) non-academic areas (daily life activities,
mobility, etc.).
Note: Labels such as mental retardation or deafness may not be used
as a substitute for the description of present levels of educational
performance.
b. The statement should be written in objective measurable terms, to
the extent possible. Data from the child's evaluation would be a good
source of such information. Test scores that are pertinent to the
child's diagnosis might be included, if appropriate. However, the scores
should be (1) self-explanatory (i.e., they can be interpreted by all
participants without the use of test manuals or other aids), or (2) an
explanation should be included. Whatever test results are used should
reflect the impact of the disability on the child's performance. Thus,
raw scores would not usually be sufficient.
c. There should be a direct relationship between the present levels
of educational performance and the other components of the IEP. Thus, if
the statement describes a problem with the child's reading level and
points to a deficiency in a specific reading skill, this problem should
be addressed under both
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(1) goals and objectives, and (2) specific special education and related
services to be provided to the child.
37. Why are goals and objectives required in the IEP?
The statutory requirements for including annual goals and short term
instructional objectives (section 602(a)(20)(B)), and for having at
least an annual review of the IEP of a child with a disability (section
614(a)(5)) provide a mechanism for determining (1) whether the
anticipated outcomes for the child are being met (i.e., whether the
child is progressing in the special education program) and (2) whether
the placement and services are appropriate to the child's special
learning needs. In effect, these requirements provide a way for the
child's teacher(s) and parents to be able to track the child's progress
in special education. However, the goals and objectives in the IEP are
not intended to be as specific as the goals and objectives that are
normally found in daily, weekly, or monthly instructional plans.
38. What are annual goals in an IEP?
The annual goals in the IEP are statements that describe what a
child with a disability can reasonably be expected to accomplish within
a twelve month period in the child's special education program. As
indicated under Question 36, above, there should be a direct
relationship between the annual goals and the present levels of
educational performance.
39. What are short term instructional objectives in an IEP?
Short term instructional objectives (also called IEP objectives) are
measurable, intermediate steps between the present levels of educational
performance of a child with a disability and the annual goals that are
established for the child. The objectives are developed based on a
logical breakdown of the major components of the annual goals, and can
serve as milestones for measuring progress toward meeting the goals.
In some respects, IEP objectives are similar to objectives used in
daily classroom instructional plans. For example, both kinds of
objectives are used (1) to describe what a given child is expected to
accomplish in a particular area within some specified time period, and
(2) to determine the extent that the child is progressing toward those
accomplishments.
In other respects, objectives in IEPs are different from those used
in instructional plans, primarily in the amount of detail they provide.
IEP objectives provide general benchmarks for determining progress
toward meeting the annual goals. These objectives should be projected to
be accomplished over an extended period of time (e.g., an entire school
quarter or semester). On the other hand, the objectives in classroom
instructional plans deal with more specific outcomes that are to be
accomplished on a daily, weekly, or monthly basis. Classroom
instructional plans generally include details not required in an IEP,
such as the specific methods, activities, and materials (e.g., use of
flash cards) that will be used in accomplishing the objectives.
40. Should the IEP goals and objectives focus only on special
education and related services, or should they relate to the total
education of the child?
IEP goals and objectives are concerned primarily with meeting the
needs of a child with a disability for special education and related
services, and are not required to cover other areas of the child's
education. Stated another way, the goals and objectives in the IEP
should focus on offsetting or reducing the problems resulting from the
child's disability that interfere with learning and educational
performance in school. For example, if a child with a learning
disability is functioning several grades below the child's indicated
ability in reading and has a specific problem with word recognition, the
IEP goals and objectives would be directed toward (1) closing the gap
between the child's indicated ability and current level of functioning,
and (2) helping the child increase the ability to use word attack skills
effectively (or to find some other approach to increase independence in
reading).
For a child with a mild speech impairment, the IEP objectives would
focus on improving the child's communication skills, by either (1)
correcting the impairment, or (2) minimizing its effect on the child's
ability to communicate. On the other hand, the goals and objectives for
a child with severe mental retardation would be more comprehensive and
cover more of the child's school program than if the child has only a
mild disability.
41. Should there be a relationship between the goals and objectives
in the IEP and those that are in instructional plans of special
education personnel?
Yes. There should be a direct relationship between the IEP goals and
objectives for a given child with a disability and the goals and
objectives that are in the special education instructional plans for the
child. However, the IEP is not intended to be detailed enough to be used
as an instructional plan. The IEP, through its goals and objectives, (1)
sets the general direction to be taken by those who will implement the
IEP, and (2) serves as the basis for developing a detailed instructional
plan for the child.
Note: See Question 56, below, regarding the length of IEPs.
42. When must IEP objectives be written--before placement or after
placement?
IEP objectives must be written before placement. Once a child with a
disability is placed in a special education program, the teacher might
develop lesson plans or more
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detailed objectives based on the IEP; however, such plans and objectives
are not required to be a part of the IEP itself.
43. Can short term instructional objectives be changed without
initiating another IEP meeting?
No. Section 300.343(a) provides that the agency ``is responsible for
initiating and conducting meetings for the purpose of developing,
reviewing, and revising the IEP of a child with a disability'' (emphasis
added). Since a change in short term instructional objectives
constitutes a revision of the child's IEP, the agency must (1) notify
the parents of the proposed change (see Sec. 300.504(a)(1)), and (2)
initiate an IEP meeting. Note, however, that if the parents are unable
or unwilling to attend such a meeting, their participation in the
revision of the IEP objectives can be obtained through other means,
including individual or conference telephone calls (see
Sec. 300.345(c)).
44. Must the IEP include all special education and related services
needed by the child or only those available from the public agency?
Each public agency must provide FAPE to all children with
disabilities under its jurisdiction. Therefore, the IEP for a child with
a disability must include all of the specific special education and
related services needed by the child--as determined by the child's
current evaluation. This means that the services must be listed in the
IEP even if they are not directly available from the local agency, and
must be provided by the agency through contract or other arrangements.
45. Is the IEP a commitment to provide services--i.e., must a public
agency provide all of the services listed in the IEP?
Yes. The IEP of each child with a disability must include all
services necessary to meet the child's identified special education and
related services needs; and all services in the IEP must be provided in
order for the agency to be in compliance with the Act.
46. Must the public agency itself directly provide the services set
out in the IEP?
The public agency responsible for the education of a child with a
disability could provide IEP services to the child (1) directly, through
the agency's own staff resources, or (2) 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)). However, the services must be at no cost to the
parents, and responsibility for ensuring that the IEP services are
provided remains with the public agency.
47. Does the IEP include only special education and related services
or does it describe the total education of the child?
The IEP is required to include only those matters concerning the
provision of special education and related services and the extent that
the child can participate in regular education programs. (Note: The
regulations define special education as specially designed instruction
to meet the unique needs of a child with a disability, and related
services as those services that are necessary to assist the child to
benefit from special education.) (See Secs. 300.17 and 300.16,
respectively.)
For some children with disabilities, the IEP will only address a
very limited part of their education (e.g., for a child with a speech
impairment, the IEP would generally be limited to the child's speech
impairment). For other children (e.g., those with profound mental
retardation), the IEP might cover their total education. An IEP for a
child with a physical disability with no mental or emotional disability
might consist only of specially designed physical education. However, if
the child also has a mental or emotional disability, the IEP might cover
most of the child's education.
Note: The IEP is not intended to be detailed enough to be used as an
instructional plan. See Question 41, above.
48. If modifications are necessary for a child with a disability to
participate in a regular education program, must they be included in the
IEP?
Yes. If modifications (supplementary aids and services) to the
regular education program are necessary to ensure the child's
participation in that program, those modifications must be described in
the child's IEP (e.g., for a child with a hearing impairment, special
seating arrangements or the provision of assignments in writing). This
applies to any regular education program in which the student may
participate, including physical education, art, music, and vocational
education.
49. When must physical education (PE) be described or referred to in
the IEP?
Section 300.307(a) provides that physical education services,
specially designed if necessary, must be made available to every child
with a disability receiving FAPE. The following paragraphs (1) set out
some of the different PE program arrangements for students with
disabilities, and (2) indicate whether, and to what extent, PE must be
described or referred to in an IEP:
a. Regular PE with nondisabled students. If a student with a
disability can participate fully in the regular PE program without any
special modifications to compensate for the student's disability, it
would not be necessary to describe or refer to PE in the IEP. On the
other hand, if some modifications to the regular PE program are
necessary for the
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student to be able to participate in that program, those modifications
must be described in the IEP.
b. Specially designed PE. If a student with a disability needs a
specially designed PE program, that program must be addressed in all
applicable areas of the IEP (e.g., present levels of educational
performance, goals and objectives, and services to be provided).
However, these statements would not have to be presented in any more
detail than the other special education services included in the
student's IEP.
c. PE in separate facilities. If a student with a disability is
educated in a separate facility, the PE program for that student must be
described or referred to in the IEP. However, the kind and amount of
information to be included in the IEP would depend on the physical-motor
needs of the student and the type of PE program that is to be provided.
Thus, if a student is in a separate facility that has a standard PE
program (e.g., a residential school for students with deafness), and if
it is determined--on the basis of the student's most recent evaluation--
that the student is able to participate in that program without any
modifications, then the IEP need only note such participation. On the
other hand, if special modifications to the PE program are needed for
the student to participate, those modifications must be described in the
IEP. Moreover, if the student needs an individually designed PE program,
that program must be addressed under all applicable parts of the IEP.
(See paragraph ``b'', above.)
50. If a student with a disability is to receive vocational
education, must it be described or referred to in the student's IEP?
The answer depends on the kind of vocational education program to be
provided. If a student with a disability is able to participate in the
regular vocational education program without any modifications to
compensate for the student's disability, it would not be necessary to
include vocational education in the student's IEP. On the other hand, if
modifications to the regular vocational education program are necessary
in order for the student to participate in that program, those
modifications must be included in the IEP. Moreover, if the student
needs a specially designed vocational education program, then vocational
education must be described in all applicable areas of the student's IEP
(e.g., present levels of educational performance, goals and objectives,
and specific services to be provided). However, these statements would
not have to be presented in any more detail than the other special
education services included in the IEP.
51. Must the IEP specify the amount of services or may it simply
list the services to be provided?
The amount of services to be provided must be stated in the IEP, so
that the level of the agency's commitment of resources will be clear to
parents and other IEP team members. The amount of time to be committed
to each of the various services to be provided must be (1) appropriate
to that 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.
Changes in the amount of services listed in the IEP cannot be made
without holding another IEP meeting. However, as long as there is no
change in the overall amount, some adjustments in scheduling the
services should be possible (based on the professional judgment of the
service provider) without holding another IEP meeting.
Note: The parents should be notified whenever this occurs.
52. Must the IEP of a child with a disability indicate the extent
that the child will be educated in the regular educational program?
Yes. Section 300.346(a)(3) provides that the IEP for each child with
a disability must include a ``statement of * * * the extent that the
child will be able to participate in regular educational programs.'' One
way of meeting this requirement is to indicate the percent of time the
child will be spending in the regular education program with nondisabled
students. Another way is to list the specific regular education classes
the child will be attending.
Note: If a child with a severe disability, for example, is expected
to be in a special classroom setting most of the time, it is recommended
that, in meeting the above requirement, the IEP include any non-
curricular activities in which the child will be participating with
nondisabled students (e.g., lunch, assembly periods, club activities,
and other special events).
53. Can the anticipated duration of services be for more than twelve
months?
In general, the anticipated duration of services would be up to
twelve months. There is a direct relationship between the anticipated
duration of services and the other parts of the IEP (e.g., annual goals
and short term instructional objectives), and each part of the IEP would
be addressed whenever there is a review of the child's program. If it is
anticipated that the child will need a particular service for more than
one year, the duration of that service could be projected beyond that
time in the IEP. However, the duration of each service must be
reconsidered whenever the IEP is reviewed.
54. Must the evaluation procedures and schedules be included as a
separate item in the IEP?
No. The evaluation procedures and schedules need not be included as
a separate item
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in the IEP, but they must be presented in a recognizable form and be
clearly linked to the short term instructional objectives.
Note: In many instances, these components are incorporated directly
into the objectives.
Other Questions About the Content of an IEP
55. Is it permissible for an agency to have the IEP completed when
the IEP meeting begins?
No. It is not permissible for an agency to present a completed IEP
to parents for their approval before there has been a full discussion
with the parents of (1) the child's need for special education and
related services, and (2) what services the agency will provide to the
child. Section 602(a)(20) of the Act defines the IEP as a written
statement developed in any meeting with the agency representative, the
teacher, the parent, and, if appropriate, the child.
It would be appropriate for agency staff to come prepared with
evaluation findings, statements of present levels of educational
performance, and a recommendation regarding annual goals, short term
instructional objectives, and the kind of special education and related
services to be provided. However, 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. The legislative history of Public Law 94-142 makes it clear
that parents must be given the opportunity to be active participants in
all major decisions affecting the education of their children with
disabilities. (See, e.g., S. Rep. No. 168, 94th Cong. 1st Sess. 13
(1975); S. Rep. No. 455 (Conference Report), 94th Cong. 1st Sess. 47-50
(1975).)
56. Is there a prescribed format or length for an IEP?
No. The format and length of an IEP are matters left to the
discretion of State and local agencies. The IEP should be as long as
necessary to adequately describe a child's program. However, as
indicated in Question 41, above, the IEP is not intended to be a
detailed instructional plan. The Federal IEP requirements can usually be
met in a one to three page form.
57. Is it permissible to consolidate the IEP with an individualized
service plan developed under another Federal program?
Yes. In instances where a child with a disability must have both an
IEP and an individualized service plan under another Federal program, it
may be possible to develop a single, consolidated document only if: (1)
It contains all of the information required in an IEP, and (2) all of
the necessary parties participate in its development.
Examples of individualized service plans that might be consolidated
with the IEP are: (1) The Individualized Care Plan (title XIX of the
Social Security Act (Medicaid)), (2) the Individualized Program Plan
(title XX of the Social Security Act (Social Services)), (3) the
Individualized Service Plan (title XVI of the Social Security Act
(Supplemental Security Income)), and (4) the Individualized Written
Rehabilitation Plan (Rehabilitation Act of 1973).
58. What provisions on confidentiality of information apply to IEPs?
IEPs are subject to the confidentiality provisions of both (1) part
B (section 617(c) of the Act; Secs. 300.560-300.576 of the regulations),
and (2) the Family Educational Rights and Privacy Act (``FERPA'', 20
U.S.C. 1232g) and implementing regulations in 34 CFR part 99. An IEP is
an education record as that term is used in the FERPA and implementing
regulations (34 CFR Sec. 99.3) and is, therefore, subject to the same
protections as other education records relating to the student.
Note: Under Sec. 99.31(a) of the FERPA regulations, an educational
agency may disclose personally identifiable information from the
education records of a student without the written consent of the
parents if ``(1) The disclosure is to other school officials, including
teachers, within the agency or institution whom the agency or
institution has determined to have legitimate educational interests * *
*'' in that information.
Sec. 300.348 Private school placements by public agencies.
(a) Developing individualized education programs. (1) Before a
public agency places a child with a disability in, or refers a child to,
a private school or facility, the agency shall initiate and conduct a
meeting to develop an IEP for the child in accordance with Sec. 300.343.
(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.
(3) [Reserved]
(b) Reviewing and revising individualized education programs. (1)
After a child with a disability enters a private school or facility, any
meetings to review and revise the child's IEP may be initiated and
conducted by the private school or facility at the discretion of the
public agency.
(2) If the private school or facility initiates and conducts these
meetings, the public agency shall ensure that the parents and an agency
representative;
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the program before those
changes are implemented.
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(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. 1413(a)(4)(B))
59. If placement decisions are made at the time the IEP is
developed, how can a private school representative attend the meeting?
Generally, a child who requires placement in either a public or
private residential school has already been receiving special education,
and the parents and school personnel have often jointly been involved
over a prolonged period of time in attempting to find the most
appropriate placement for the child. At some point in this process
(e.g., at a meeting where the child's current IEP is being reviewed),
the possibility of residential school placement might be proposed--by
either the parents or school personnel. If both agree, then the matter
would be explored with the residential school. A subsequent meeting
would then be conducted to finalize the IEP. At this meeting, the public
agency must ensure that a representative of the residential school
either (1) attends the meeting, or (2) participates through individual
or conference telephone calls, or by other means.
Sec. 300.349 Children with disabilities in parochial or other private
schools.
If a child with a disability is enrolled in a parochial or other
private school and receives special education or related services from a
public agency, the public agency shall--
(a) Initiate and conduct meetings to develop, review, and revise an
IEP for the child, in accordance with Sec. 300.343; and
(b) Ensure that a representative of the parochial or other private
school attends each meeting. If the representative cannot attend, the
agency shall use other methods to ensure participation by the private
school, including individual or conference telephone calls.
(Authority: 20 U.S.C. 1413(a)(4)(A))
Sec. 300.350 Individualized education program--accountability.
Each public agency must provide special education and related
services to a child with a disability in accordance with an IEP.
However, part B of the Act does not require that any agency, teacher, or
other person be held accountable if a child does not achieve the growth
projected in the annual goals and objectives.
(Authority: 20 U.S.C. 1412(2)(B); 1414(a)(5), (6); Cong. Rec. at H7152
(daily ed., July 21, 1975))
Note: This section is intended to relieve concerns that the IEP
constitutes a guarantee by the public agency and the teacher that a
child will progress at a specified rate. However, this section does not
relieve agencies and teachers from making good faith efforts to assist
the child in achieving the goals and objectives listed in the IEP.
Further, the section does not limit a parent's right to complain and ask
for revisions of the child's program, or to invoke due process
procedures, if the parent feels that these efforts are not being made.
60. Is the IEP a performance contract?
No. Section 300.350 makes it clear that the IEP is not a performance
contract that imposes liability on a teacher or public agency if a child
with a disability does not meet the IEP objectives. While the agency
must provide special education and related services in accordance with
the IEP of each child with a disability, the Act does not require that
the agency, the teacher, or other persons be held accountable if the
child does not achieve the growth projected in the written statement.
Authority: 20 U.S.C. 1411-1420
(Catalog of Federal Domestic Assistance number 84.027, Assistance to
States for Education of Children with Disabilities; 84.173 Preschool
Grants Program)
[57 FR 48694, Oct. 27, 1992]
PART 301--PRESCHOOL GRANTS FOR CHILDREN WITH DISABILITIES--Table of Contents
Subpart A--General
Sec.
301.1 Purpose of the Preschool Grants for Children With Disabilities
program.
301.2-301.3 [Reserved]
301.4 Applicable regulations.
301.5 Applicable definitions.
301.6 Applicability of part C of the Act to 2-year-old children with
disabilities.
Subpart B--State Eligibility for a Grant
301.10 Eligibility of a State to receive a grant.
301.11 [Reserved]
301.12 Sanctions if a State does not make a free appropriate public
education available to all preschool children with
disabilities.
Subpart C--Allocation of Funds to a State
301.20 Allocation to States.
301.21 Increase in funds.
301.22 Limitation.
301.23 Decrease in funds.
301.24 State-level activities.
301.25 Use of funds for State administration.
301.26 Use of State agency allocations.
[[Page 91]]
Subpart D--Allocation of Funds to Local Educational Agencies
301.30 Subgrants to local educational agencies.
301.31 Allocations to local educational agencies.
301.32 Reallocation of local educational agency funds.
Authority: 20 U.S.C. 1419, unless otherwise noted.
Source: 63 FR 29930, June 1, 1998, unless otherwise noted.
Subpart A--General