[Title 34 CFR ]
[Code of Federal Regulations (annual edition) - July 1, 2015 Edition]
[From the U.S. Government Publishing Office]
[[Page i]]
Title 34
Education
________________________
Parts 300 to 399
Revised as of July 1, 2015
Containing a codification of documents of general
applicability and future effect
As of July 1, 2015
Published by the Office of the Federal Register
National Archives and Records Administration as a
Special Edition of the Federal Register
[[Page ii]]
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[[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 5
Findings Aids:
Table of CFR Titles and Chapters........................ 515
Alphabetical List of Agencies Appearing in the CFR...... 535
List of CFR Sections Affected........................... 545
[[Page iv]]
----------------------------
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.
----------------------------
[[Page v]]
EXPLANATION
The Code of Federal Regulations is a codification of the general and
permanent rules published in the Federal Register by the Executive
departments and agencies of the Federal Government. The Code is divided
into 50 titles which represent broad areas subject to Federal
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parts covering specific regulatory areas.
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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LEGAL STATUS
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HOW TO USE THE CODE OF FEDERAL REGULATIONS
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collection request.
[[Page vi]]
Many agencies have begun publishing numerous OMB control numbers as
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(b) The matter incorporated is in fact available to the extent
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alphabetical list of agencies publishing in the CFR are also included in
this volume.
[[Page vii]]
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John Hyrum Martinez,
Acting Director,
Office of the Federal Register.
July 1, 2015.
[[Page ix]]
THIS TITLE
Title 34--Education is composed of four volumes. The parts in these
volumes are arranged in the following order: Parts 1-299, parts 300-399,
parts 400-679, and part 680 to end. The contents of these volumes
represent all regulations codified under this title of the CFR as of
July 1, 2015.
For this volume, Michele Bugenhagen was Chief Editor. The Code of
Federal Regulations publication program is under the direction of John
Hyrum Martinez, assisted by Stephen J. Frattini.
[[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
[[Page 3]]
Subtitle B--Regulations of the Offices of the Department of Education
(Continued)
[[Page 5]]
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.............. 7
303 Early intervention program for infants and
toddlers with disabilities.............. 172
304 Service obligations under special
education--personnel development to
improve services and results for
children with disabilities.............. 276
350 Disability and Rehabilitation Research
Projects and Centers Program............ 279
356 Disability and rehabilitation research:
Research fellowships.................... 294
359 Disability and rehabilitation research:
Special projects and demonstrations for
spinal cord injuries.................... 297
361 State Vocational Rehabilitation Services
Program................................. 300
363 The State Supported Employment Services
Program................................. 365
364 State Independent Living Services Program
and Centers for Independent Living
Program: General provisions............. 371
365 State independent living services........... 390
366 Centers for independent living.............. 394
367 Independent living services for older
individuals who are blind............... 414
369 Vocational rehabilitation service projects.. 420
370 Client Assistance Program................... 428
371 Vocational rehabilitation service projects
for American Indians with disabilities.. 438
373 Special demonstration programs.............. 442
376 Special projects and demonstrations for
providing transitional rehabilitation
services to youth with disabilities..... 448
[[Page 6]]
377 Demonstration Projects To Increase Client
Choice Program.......................... 451
379 Projects with industry...................... 456
380
[Reserved]
381 Protection and advocacy of individual rights 466
385 Rehabilitation training..................... 472
386 Rehabilitation training: Rehabilitation
long-term training...................... 479
387 Experimental and innovative training........ 485
388 State vocational rehabilitation unit in-
service training........................ 487
389 Rehabilitation continuing education programs 490
390 Rehabilitation short-term training.......... 492
395 Vending facility program for the blind on
Federal and other property.............. 493
396 Training of interpreters for individuals who
are deaf and individuals who are deaf-
blind................................... 509
397-399
[Reserved]
[[Page 7]]
PART 300_ASSISTANCE TO STATES FOR THE EDUCATION OF CHILDREN WITH DISABILITIES
--Table of Contents
Subpart A_General
Purposes and Applicability
Sec.
300.1 Purposes.
300.2 Applicability of this part to State and local agencies.
Definitions Used in This Part
300.4 Act.
300.5 Assistive technology device.
300.6 Assistive technology service.
300.7 Charter school.
300.8 Child with a disability.
300.9 Consent.
300.10 Core academic subjects.
300.11 Day; business day; school day.
300.12 Educational service agency.
300.13 Elementary school.
300.14 Equipment.
300.15 Evaluation.
300.16 Excess costs.
300.17 Free appropriate public education.
300.18 Highly qualified special education teachers.
300.19 Homeless children.
300.20 Include.
300.21 Indian and Indian tribe.
300.22 Individualized education program.
300.23 Individualized education program team.
300.24 Individualized family service plan.
300.25 Infant or toddler with a disability.
300.26 Institution of higher education.
300.27 Limited English proficient.
300.28 Local educational agency.
300.29 Native language.
300.30 Parent.
300.31 Parent training and information center.
300.32 Personally identifiable.
300.33 Public agency.
300.34 Related services.
300.35 Scientifically based research.
300.36 Secondary school.
300.37 Services plan.
300.38 Secretary.
300.39 Special education.
300.40 State.
300.41 State educational agency.
300.42 Supplementary aids and services.
300.43 Transition services.
300.44 Universal design.
300.45 Ward of the State.
Subpart B_State Eligibility
General
300.100 Eligibility for assistance.
FAPE Requirements
300.101 Free appropriate public education (FAPE).
300.102 Limitation--exception to FAPE for certain ages.
Other FAPE Requirements
300.103 FAPE--methods and payments.
300.104 Residential placement.
300.105 Assistive technology.
300.106 Extended school year services.
300.107 Nonacademic services.
300.108 Physical education.
300.109 Full educational opportunity goal (FEOG).
300.110 Program options.
300.111 Child find.
300.112 Individualized education programs (IEP).
300.113 Routine checking of hearing aids and external components of
surgically implanted medical devices.
Least Restrictive Environment (LRE)
300.114 LRE requirements.
300.115 Continuum of alternative placements.
300.116 Placements.
300.117 Nonacademic settings.
300.118 Children in public or private institutions.
300.119 Technical assistance and training activities.
300.120 Monitoring activities.
Additional Eligibility Requirements
300.121 Procedural safeguards.
300.122 Evaluation.
300.123 Confidentiality of personally identifiable information.
300.124 Transition of children from the Part C program to preschool
programs.
300.125-300.128 [Reserved]
Children in Private Schools
300.129 State responsibility regarding children in private schools.
Children With Disabilities Enrolled by Their Parents in Private Schools
300.130 Definition of parentally-placed private school children with
disabilities.
300.131 Child find for parentally-placed private school children with
disabilities.
300.132 Provision of services for parentally-placed private school
children with disabilities--basic requirement.
300.133 Expenditures.
300.134 Consultation.
300.135 Written affirmation.
300.136 Compliance.
300.137 Equitable services determined.
300.138 Equitable services provided.
300.139 Location of services and transportation.
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300.140 Due process complaints and State complaints.
300.141 Requirement that funds not benefit a private school.
300.142 Use of personnel.
300.143 Separate classes prohibited.
300.144 Property, equipment, and supplies.
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
300.145 Applicability of Secs. 300.146 through 300.147.
300.146 Responsibility of SEA.
300.147 Implementation by SEA.
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE is at Issue
300.148 Placement of children by parents when FAPE is at issue.
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
300.149 SEA responsibility for general supervision.
300.150 SEA implementation of procedural safeguards.
State Complaint Procedures
300.151 Adoption of State complaint procedures.
300.152 Minimum State complaint procedures.
300.153 Filing a complaint.
Methods of Ensuring Services
300.154 Methods of ensuring services.
Additional Eligibility Requirements
300.155 Hearings relating to LEA eligibility.
300.156 Personnel qualifications.
300.157 Performance goals and indicators.
300.158-300.159 [Reserved]
300.160 Participation in assessments.
300.161 [Reserved]
300.162 Supplementation of State, local, and other Federal funds.
300.163 Maintenance of State financial support.
300.164 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
300.165 Public participation.
300.166 Rule of construction.
State Advisory Panel
300.167 State advisory panel.
300.168 Membership.
300.169 Duties.
Other Provisions Required for State Eligibility
300.170 Suspension and expulsion rates.
300.171 Annual description of use of Part B funds.
300.172 Access to instructional materials.
300.173 Overidentification and disproportionality.
300.174 Prohibition on mandatory medication.
300.175 SEA as provider of FAPE or direct services.
300.176 Exception for prior State plans.
300.177 States' sovereign immunity and positive efforts to employ and
advance qualified individuals with disabilities.
Department Procedures
300.178 Determination by the Secretary that a State is eligible to
receive a grant.
300.179 Notice and hearing before determining that a State is not
eligible to receive a grant.
300.180 Hearing official or panel.
300.181 Hearing procedures.
300.182 Initial decision; final decision.
300.183 Filing requirements.
300.184 Judicial review.
300.185 [Reserved]
300.186 Assistance under other Federal programs.
By-pass for Children in Private Schools
300.190 By-pass--general.
300.191 Provisions for services under a by-pass.
300.192 Notice of intent to implement a by-pass.
300.193 Request to show cause.
300.194 Show cause hearing.
300.195 Decision.
300.196 Filing requirements.
300.197 Judicial review.
300.198 Continuation of a by-pass.
State Administration
300.199 State administration.
Subpart C_Local Educational Agency Eligibility
300.200 Condition of assistance.
300.201 Consistency with State policies.
300.202 Use of amounts.
300.203 Maintenance of effort.
300.204 Exception to maintenance of effort.
300.205 Adjustment to local fiscal efforts in certain fiscal years.
300.206 Schoolwide programs under title I of the ESEA.
300.207 Personnel development.
300.208 Permissive use of funds.
300.209 Treatment of charter schools and their students.
300.210 Purchase of instructional materials.
300.211 Information for SEA.
300.212 Public information.
300.213 Records regarding migratory children with disabilities.
[[Page 9]]
300.214-300.219 [Reserved]
300.220 Exception for prior local plans.
300.221 Notification of LEA or State agency in case of ineligibility.
300.222 LEA and State agency compliance.
300.223 Joint establishment of eligibility.
300.224 Requirements for establishing eligibility.
300.225 [Reserved]
300.226 Early intervening services.
300.227 Direct services by the SEA.
300.228 State agency eligibility.
300.229 Disciplinary information.
300.230 SEA flexibility.
Subpart D_Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
300.300 Parental consent.
Evaluations and Reevaluations
300.301 Initial evaluations.
300.302 Screening for instructional purposes is not evaluation.
300.303 Reevaluations.
300.304 Evaluation procedures.
300.305 Additional requirements for evaluations and reevaluations.
300.306 Determination of eligibility.
Additional Procedures for Identifying Children With Specific Learning
Disabilities
300.307 Specific learning disabilities.
300.308 Additional group members.
300.309 Determining the existence of a specific learning disability.
300.310 Observation.
300.311 Specific documentation for the eligibility determination.
Individualized Education Programs
300.320 Definition of individualized education program.
300.321 IEP Team.
300.322 Parent participation.
300.323 When IEPs must be in effect.
Development of IEP
300.324 Development, review, and revision of IEP.
300.325 Private school placements by public agencies.
300.326 [Reserved]
300.327 Educational placements.
300.328 Alternative means of meeting participation.
Subpart E_Procedural Safeguards
Due Process Procedures for Parents and Children
300.500 Responsibility of SEA and other public agencies.
300.501 Opportunity to examine records; parent participation in
meetings.
300.502 Independent educational evaluation.
300.503 Prior notice by the public agency; content of notice.
300.504 Procedural safeguards notice.
300.505 Electronic mail.
300.506 Mediation.
300.507 Filing a due process complaint.
300.508 Due process complaint.
300.509 Model forms.
300.510 Resolution process.
300.511 Impartial due process hearing.
300.512 Hearing rights.
300.513 Hearing decisions.
300.514 Finality of decision; appeal; impartial review.
300.515 Timelines and convenience of hearings and reviews.
300.516 Civil action.
300.517 Attorneys' fees.
300.518 Child's status during proceedings.
300.519 Surrogate parents.
300.520 Transfer of parental rights at age of majority.
300.521-300.529 [Reserved]
Discipline Procedures
300.530 Authority of school personnel.
300.531 Determination of setting.
300.532 Appeal.
300.533 Placement during appeals.
300.534 Protections for children not determined eligible for special
education and related services.
300.535 Referral to and action by law enforcement and judicial
authorities.
300.536 Change of placement because of disciplinary removals.
300.537 State enforcement mechanisms.
300.538-300.599 [Reserved]
Subpart F_Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
300.600 State monitoring and enforcement.
300.601 State performance plans and data collection.
300.602 State use of targets and reporting.
300.603 Secretary's review and determination regarding State
performance.
300.604 Enforcement.
300.605 Withholding funds.
300.606 Public attention.
300.607 Divided State agency responsibility.
300.608 State enforcement.
300.609 Rule of construction.
[[Page 10]]
Confidentiality of Information
300.610 Confidentiality.
300.611 Definitions.
300.612 Notice to parents.
300.613 Access rights.
300.614 Record of access.
300.615 Records on more than one child.
300.616 List of types and locations of information.
300.617 Fees.
300.618 Amendment of records at parent's request.
300.619 Opportunity for a hearing.
300.620 Result of hearing.
300.621 Hearing procedures.
300.622 Consent.
300.623 Safeguards.
300.624 Destruction of information.
300.625 Children's rights.
300.626 Enforcement.
300.627 Department use of personally identifiable information.
Reports--Program Information
300.640 Annual report of children served--report requirement.
300.641 Annual report of children served--information required in the
report.
300.642 Data reporting.
300.643 Annual report of children served--certification.
300.644 Annual report of children served--criteria for counting
children.
300.645 Annual report of children served--other responsibilities of the
SEA.
300.646 Disproportionality.
Subpart G_Authorization, Allotment, Use of Funds, Authorization of
Appropriations
Allotments, Grants, and Use of Funds
300.700 Grants to States.
300.701 Outlying areas, freely associated States, and the Secretary of
the Interior.
300.702 Technical assistance.
300.703 Allocations to States.
300.704 State-level activities.
300.705 Subgrants to LEAs.
300.706 [Reserved]
Secretary of the Interior
300.707 Use of amounts by Secretary of the Interior.
300.708 Submission of information.
300.709 Public participation.
300.710 Use of funds under Part B of the Act.
300.711 Early intervening services.
300.712 Payments for education and services for Indian children with
disabilities aged three through five.
300.713 Plan for coordination of services.
300.714 Establishment of advisory board.
300.715 Annual reports.
300.716 Applicable regulations.
Definitions That Apply to This Subpart
300.717 Definitions applicable to allotments, grants, and use of funds.
Acquisition of Equipment and Construction or Alteration of Facilities
300.718 Acquisition of equipment and construction or alteration of
facilities.
Subpart H_Preschool Grants for Children With Disabilities
300.800 In general.
300.801-300.802 [Reserved]
300.803 Definition of State.
300.804 Eligibility.
300.805 [Reserved]
300.806 Eligibility for financial assistance.
300.807 Allocations to States.
300.808 Increase in funds.
300.809 Limitations.
300.810 Decrease in funds.
300.811 [Reserved]
300.812 Reservation for State activities.
300.813 State administration.
300.814 Other State-level activities.
300.815 Subgrants to LEAs.
300.816 Allocations to LEAs.
300.817 Reallocation of LEA funds.
300.818 Part C of the Act inapplicable.
Appendix A to Part 300--Excess Costs Calculation
Appendix B to Part 300--Proportionate Share Calculation
Appendix C to Part 300--National Instructional Materials Accessibility
Standard (NIMAS)
Appendix D to Part 300--Maintenance of Effort and Early Intervening
Services
Appendix E To Part 300--Local Educational Agency Maintenance of Effort
Calculation Examples
Appendix F to Part 300--Index for IDEA--Part B Regulations (34 CFR Part
300)
Authority: 20 U.S.C. 1221e-3, 1406, 1411-1419, 3474, unless
otherwise noted.
Source: 71 FR 46753, Aug. 14, 2006, unless otherwise noted.
Subpart A_General
Purposes and Applicability
Sec. 300.1 Purposes.
The purposes of this part are--
(a) To ensure that all children with disabilities have available to
them a free appropriate public education that emphasizes special
education and related services designed to meet their
[[Page 11]]
unique needs and prepare them for further education, employment, and
independent living;
(b) To ensure that the rights of children with disabilities and
their parents are protected;
(c) To assist States, localities, educational service agencies, and
Federal agencies to provide for the education of all children with
disabilities; and
(d) To assess and ensure the effectiveness of efforts to educate
children with disabilities.
(Authority: 20 U.S.C. 1400(d))
Sec. 300.2 Applicability of this part to State and local agencies.
(a) States. This part applies to each State that receives payments
under Part B of the Act, as defined in Sec. 300.4.
(b) Public agencies within the State. The provisions of this part--
(1) Apply to all political subdivisions of the State that are
involved in the education of children with disabilities, including:
(i) The State educational agency (SEA).
(ii) Local educational agencies (LEAs), educational service agencies
(ESAs), and public charter schools that are not otherwise included as
LEAs or ESAs and are not a school of an LEA or ESA.
(iii) Other State agencies and schools (such as Departments of
Mental Health and Welfare and State schools for children with deafness
or children with blindness).
(iv) State and local juvenile and adult correctional facilities; and
(2) Are binding on each public agency in the State that provides
special education and related services to children with disabilities,
regardless of whether that agency is receiving funds under Part B of the
Act.
(c) Private schools and facilities. Each public agency in the State
is responsible for ensuring that the rights and protections under Part B
of the Act are given to children with disabilities--
(1) Referred to or placed in private schools and facilities by that
public agency; or
(2) Placed in private schools by their parents under the provisions
of Sec. 300.148.
(Authority: 20 U.S.C. 1412)
Definitions Used in This Part
Sec. 300.4 Act.
Act means the Individuals with Disabilities Education Act, as
amended.
(Authority: 20 U.S.C. 1400(a))
Sec. 300.5 Assistive technology device.
Assistive technology device means any item, piece of equipment, or
product system, whether acquired commercially off the shelf, modified,
or customized, that is used to increase, maintain, or improve the
functional capabilities of a child with a disability. The term does not
include a medical device that is surgically implanted, or the
replacement of such device.
(Authority: 20 U.S.C. 1401(1))
Sec. 300.6 Assistive technology service.
Assistive technology service means any service that directly assists
a child with a disability in the selection, acquisition, or use of an
assistive technology device. The term includes--
(a) The evaluation of the needs of a child with a disability,
including a functional evaluation of the child in the child's customary
environment;
(b) Purchasing, leasing, or otherwise providing for the acquisition
of assistive technology devices by children with disabilities;
(c) Selecting, designing, fitting, customizing, adapting, applying,
maintaining, repairing, or replacing assistive technology devices;
(d) Coordinating and using other therapies, interventions, or
services with assistive technology devices, such as those associated
with existing education and rehabilitation plans and programs;
(e) Training or technical assistance for a child with a disability
or, if appropriate, that child's family; and
(f) Training or technical assistance for professionals (including
individuals providing education or rehabilitation services), employers,
or other individuals who provide services to, employ, or are otherwise
substantially involved
[[Page 12]]
in the major life functions of that child.
(Authority: 20 U.S.C. 1401(2))
Sec. 300.7 Charter school.
Charter school has the meaning given the term in section 5210(1) of
the Elementary and Secondary Education Act of 1965, as amended, 20
U.S.C. 6301 et seq. (ESEA).
(Authority: 20 U.S.C. 7221i(1))
Sec. 300.8 Child with a disability.
(a) General. (1) Child with a disability means a child evaluated in
accordance with Secs. 300.304 through 300.311 as having mental
retardation, a hearing impairment (including deafness), a speech or
language impairment, a visual impairment (including blindness), a
serious emotional disturbance (referred to in this part as ``emotional
disturbance''), an orthopedic impairment, autism, traumatic brain
injury, an other health impairment, a specific learning disability,
deaf-blindness, or multiple disabilities, and who, by reason thereof,
needs special education and related services.
(2)(i) Subject to paragraph (a)(2)(ii) of this section, if it is
determined, through an appropriate evaluation under Secs. 300.304
through 300.311, that a child has one of the disabilities identified in
paragraph (a)(1) of this section, but only needs a related service and
not special education, the child is not a child with a disability under
this part.
(ii) If, consistent with Sec. 300.39(a)(2), the related service
required by the child is considered special education rather than a
related service under State standards, the child would be determined to
be a child with a disability under paragraph (a)(1) of this section.
(b) Children aged three through nine experiencing developmental
delays. Child with a disability for children aged three through nine (or
any subset of that age range, including ages three through five), may,
subject to the conditions described in Sec. 300.111(b), include a
child--
(1) Who is experiencing developmental delays, as defined by the
State and as measured by appropriate diagnostic instruments and
procedures, in one or more of the following areas: Physical development,
cognitive development, communication development, social or emotional
development, or adaptive development; and
(2) Who, by reason thereof, needs special education and related
services.
(c) Definitions of disability terms. The terms used in this
definition of a child with a disability are defined as follows:
(1)(i) Autism means a developmental disability significantly
affecting verbal and nonverbal communication and social interaction,
generally evident before age three, 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.
(ii) Autism does not apply if a child's educational performance is
adversely affected primarily because the child has an emotional
disturbance, as defined in paragraph (c)(4) of this section.
(iii) A child who manifests the characteristics of autism after age
three could be identified as having autism if the criteria in paragraph
(c)(1)(i) of this section are satisfied.
(2) Deaf-blindness means concomitant hearing and visual impairments,
the combination of which causes such severe communication and other
developmental and educational needs that they cannot be accommodated in
special education programs solely for children with deafness or children
with blindness.
(3) Deafness means a hearing impairment that is so severe that the
child is impaired in processing linguistic information through hearing,
with or without amplification, that adversely affects a child's
educational performance.
(4)(i) Emotional disturbance means a condition exhibiting one or
more of the following characteristics over a long period of time and to
a marked degree that adversely affects a child's educational
performance:
(A) An inability to learn that cannot be explained by intellectual,
sensory, or health factors.
(B) An inability to build or maintain satisfactory interpersonal
relationships with peers and teachers.
[[Page 13]]
(C) Inappropriate types of behavior or feelings under normal
circumstances.
(D) A general pervasive mood of unhappiness or depression.
(E) A tendency to develop physical symptoms or fears associated with
personal or school problems.
(ii) Emotional disturbance includes schizophrenia. The term does not
apply to children who are socially maladjusted, unless it is determined
that they have an emotional disturbance under paragraph (c)(4)(i) of
this section.
(5) Hearing impairment means an impairment in hearing, whether
permanent or fluctuating, that adversely affects a child's educational
performance but that is not included under the definition of deafness in
this section.
(6) Mental retardation means significantly subaverage general
intellectual functioning, existing concurrently with deficits in
adaptive behavior and manifested during the developmental period, that
adversely affects a child's educational performance.
(7) Multiple disabilities means concomitant impairments (such as
mental retardation-blindness or mental retardation-orthopedic
impairment), the combination of which causes such severe educational
needs that they cannot be accommodated in special education programs
solely for one of the impairments. Multiple disabilities does not
include deaf-blindness.
(8) Orthopedic impairment means a severe orthopedic impairment that
adversely affects a child's educational performance. The term includes
impairments caused by a congenital anomaly, impairments caused by
disease (e.g., poliomyelitis, bone tuberculosis), and impairments from
other causes (e.g., cerebral palsy, amputations, and fractures or burns
that cause contractures).
(9) Other health impairment means having limited strength, vitality,
or alertness, including a heightened alertness to environmental stimuli,
that results in limited alertness with respect to the educational
environment, that--
(i) Is due to chronic or acute health problems such as asthma,
attention deficit disorder or attention deficit hyperactivity disorder,
diabetes, epilepsy, a heart condition, hemophilia, lead poisoning,
leukemia, nephritis, rheumatic fever, sickle cell anemia, and Tourette
syndrome; and
(ii) Adversely affects a child's educational performance.
(10) Specific learning disability--(i) General. 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 the imperfect ability to listen,
think, speak, read, write, spell, or to do mathematical calculations,
including conditions such as perceptual disabilities, brain injury,
minimal brain dysfunction, dyslexia, and developmental aphasia.
(ii) Disorders not included. Specific learning disability does not
include learning problems that are primarily the result of visual,
hearing, or motor disabilities, of mental retardation, of emotional
disturbance, or of environmental, cultural, or economic disadvantage.
(11) Speech or language impairment means a communication disorder,
such as stuttering, impaired articulation, a language impairment, or a
voice impairment, that adversely affects a child's educational
performance.
(12) Traumatic brain injury means an acquired injury to the brain
caused by an external physical force, resulting in total or partial
functional disability or psychosocial impairment, or both, that
adversely affects a child's educational performance. Traumatic brain
injury 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. Traumatic brain injury
does not apply to brain injuries that are congenital or degenerative, or
to brain injuries induced by birth trauma.
(13) Visual impairment including blindness means an impairment in
vision that, even with correction, adversely
[[Page 14]]
affects a child's educational performance. The term includes both
partial sight and blindness.
(Authority: 20 U.S.C. 1401(3); 1401(30))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.9 Consent.
Consent means that--
(a) 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 through another mode of communication;
(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)(1) The parent understands that the granting of consent is
voluntary on the part of the parent and may be revoked at any time.
(2) If a parent revokes consent, that revocation is not retroactive
(i.e., it does not negate an action that has occurred after the consent
was given and before the consent was revoked).
(3) If the parent revokes consent in writing for their child's
receipt of special education services after the child is initially
provided special education and related services, the public agency is
not required to amend the child's education records to remove any
references to the child's receipt of special education and related
services because of the revocation of consent.
(Authority: 20 U.S.C. 1414(a)(1)(D))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007;
73 FR 73027, Dec. 1, 2008]
Sec. 300.10 Core academic subjects.
Core academic subjects means English, reading or language arts,
mathematics, science, foreign languages, civics and government,
economics, arts, history, and geography.
(Authority: 20 U.S.C. 1401(4))
Sec. 300.11 Day; business day; school day.
(a) Day means calendar day unless otherwise indicated as business
day or school day.
(b) Business day means Monday through Friday, except for Federal and
State holidays (unless holidays are specifically included in the
designation of business day, as in Sec. 300.148(d)(1)(ii)).
(c)(1) School day means any day, including a partial day that
children are in attendance at school for instructional purposes.
(2) School day has the same meaning for all children in school,
including children with and without disabilities.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.12 Educational service agency.
Educational service agency means--
(a) A regional public multiservice agency--
(1) Authorized by State law to develop, manage, and provide services
or programs to LEAs;
(2) Recognized as an administrative agency for purposes of the
provision of special education and related services provided within
public elementary schools and secondary schools of the State;
(b) Includes any other public institution or agency having
administrative control and direction over a public elementary school or
secondary school; and
(c) Includes entities that meet the definition of intermediate
educational unit in section 602(23) of the Act as in effect prior to
June 4, 1997.
(Authority: 20 U.S.C. 1401(5))
Sec. 300.13 Elementary school.
Elementary school means a nonprofit institutional day or residential
school, including a public elementary charter school, that provides
elementary education, as determined under State law.
(Authority: 20 U.S.C. 1401(6))
Sec. 300.14 Equipment.
Equipment means--
(a) Machinery, utilities, and built-in equipment, and any necessary
enclosures or structures to house the machinery, utilities, or
equipment; and
[[Page 15]]
(b) All other items necessary for the functioning of a particular
facility as a facility for the provision of educational services,
including items such as instructional equipment and necessary furniture;
printed, published and audio-visual instructional materials;
telecommunications, sensory, and other technological aids and devices;
and books, periodicals, documents, and other related materials.
(Authority: 20 U.S.C. 1401(7))
Sec. 300.15 Evaluation.
Evaluation means procedures used in accordance with Secs. 300.304
through 300.311 to determine whether a child has a disability and the
nature and extent of the special education and related services that the
child needs.
(Authority: 20 U.S.C. 1414(a) (c))
Sec. 300.16 Excess costs.
Excess costs means those costs that are in excess of the average
annual per-student expenditure in an LEA during the preceding school
year for an elementary school or secondary school student, as may be
appropriate, and that must be computed after deducting--
(a) Amounts received--
(1) Under Part B of the Act;
(2) Under Part A of title I of the ESEA; and
(3) Under Parts A and B of title III of the ESEA and;
(b) Any State or local funds expended for programs that would
qualify for assistance under any of the parts described in paragraph (a)
of this section, but excluding any amounts for capital outlay or debt
service. (See appendix A to part 300 for an example of how excess costs
must be calculated.)
(Authority: 20 U.S.C. 1401(8))
Sec. 300.17 Free appropriate public education.
Free appropriate public education or FAPE means special education
and related services that--
(a) Are provided at public expense, under public supervision and
direction, and without charge;
(b) Meet the standards of the SEA, including the requirements of
this part;
(c) Include an appropriate preschool, elementary school, or
secondary school education in the State involved; and
(d) Are provided in conformity with an individualized education
program (IEP) that meets the requirements of Secs. 300.320 through
300.324.
(Authority: 20 U.S.C. 1401(9))
Sec. 300.18 Highly qualified special education teachers.
(a) Requirements for special education teachers teaching core
academic subjects. For any public elementary or secondary school special
education teacher teaching core academic subjects, the term highly
qualified has the meaning given the term in section 9101 of the ESEA and
34 CFR 200.56, except that the requirements for highly qualified also--
(1) Include the requirements described in paragraph (b) of this
section; and
(2) Include the option for teachers to meet the requirements of
section 9101 of the ESEA by meeting the requirements of paragraphs (c)
and (d) of this section.
(b) Requirements for special education teachers in general. (1) When
used with respect to any public elementary school or secondary school
special education teacher teaching in a State, highly qualified requires
that--
(i) The teacher has obtained full State certification as a special
education teacher (including certification obtained through alternative
routes to certification), or passed the State special education teacher
licensing examination, and holds a license to teach in the State as a
special education teacher, except that when used with respect to any
teacher teaching in a public charter school, highly qualified means that
the teacher meets the certification or licensing requirements, if any,
set forth in the State's public charter school law;
(ii) The teacher has not had special education certification or
licensure requirements waived on an emergency, temporary, or provisional
basis; and
(iii) The teacher holds at least a bachelor's degree.
(2) A teacher will be considered to meet the standard in paragraph
(b)(1)(i)
[[Page 16]]
of this section if that teacher is participating in an alternative route
to special education certification program under which--
(i) The teacher--
(A) Receives high-quality professional development that is
sustained, intensive, and classroom-focused in order to have a positive
and lasting impact on classroom instruction, before and while teaching;
(B) Participates in a program of intensive supervision that consists
of structured guidance and regular ongoing support for teachers or a
teacher mentoring program;
(C) Assumes functions as a teacher only for a specified period of
time not to exceed three years; and
(D) Demonstrates satisfactory progress toward full certification as
prescribed by the State; and
(ii) The State ensures, through its certification and licensure
process, that the provisions in paragraph (b)(2)(i) of this section are
met.
(3) Any public elementary school or secondary school special
education teacher teaching in a State, who is not teaching a core
academic subject, is highly qualified if the teacher meets the
requirements in paragraph (b)(1) or the requirements in (b)(1)(iii) and
(b)(2) of this section.
(c) Requirements for special education teachers teaching to
alternate academic achievement standards. When used with respect to a
special education teacher who teaches core academic subjects exclusively
to children who are assessed against alternate academic achievement
standards established under 34 CFR 200.1(d), highly qualified means the
teacher, whether new or not new to the profession, may either--
(1) Meet the applicable requirements of section 9101 of the ESEA and
34 CFR 200.56 for any elementary, middle, or secondary school teacher
who is new or not new to the profession; or
(2) Meet the requirements of paragraph (B) or (C) of section
9101(23) of the ESEA as applied to an elementary school teacher, or, in
the case of instruction above the elementary level, meet the
requirements of paragraph (B) or (C) of section 9101(23) of the ESEA as
applied to an elementary school teacher and have subject matter
knowledge appropriate to the level of instruction being provided and
needed to effectively teach to those alternate academic achievement
standards, as determined by the State.
(d) Requirements for special education teachers teaching multiple
subjects. Subject to paragraph (e) of this section, when used with
respect to a special education teacher who teaches two or more core
academic subjects exclusively to children with disabilities, highly
qualified means that the teacher may either--
(1) Meet the applicable requirements of section 9101 of the ESEA and
34 CFR 200.56(b) or (c);
(2) In the case of a teacher who is not new to the profession,
demonstrate competence in all the core academic subjects in which the
teacher teaches in the same manner as is required for an elementary,
middle, or secondary school teacher who is not new to the profession
under 34 CFR 200.56(c) which may include a single, high objective
uniform State standard of evaluation (HOUSSE) covering multiple
subjects; or
(3) In the case of a new special education teacher who teaches
multiple subjects and who is highly qualified in mathematics, language
arts, or science, demonstrate, not later than two years after the date
of employment, competence in the other core academic subjects in which
the teacher teaches in the same manner as is required for an elementary,
middle, or secondary school teacher under 34 CFR 200.56(c), which may
include a single HOUSSE covering multiple subjects.
(e) Separate HOUSSE standards for special education teachers.
Provided that any adaptations of the State's HOUSSE would not establish
a lower standard for the content knowledge requirements for special
education teachers and meet all the requirements for a HOUSSE for
regular education teachers--
(1) A State may develop a separate HOUSSE for special education
teachers; and
(2) The standards described in paragraph (e)(1) of this section may
include single HOUSSE evaluations that cover multiple subjects.
[[Page 17]]
(f) Rule of construction. Notwithstanding any other individual right
of action that a parent or student may maintain under this part, nothing
in this part shall be construed to create a right of action on behalf of
an individual student or class of students for the failure of a
particular SEA or LEA employee to be highly qualified, or to prevent a
parent from filing a complaint under Secs. 300.151 through 300.153 about
staff qualifications with the SEA as provided for under this part.
(g) Applicability of definition to ESEA; and clarification of new
special education teacher. (1) A teacher who is highly qualified under
this section is considered highly qualified for purposes of the ESEA.
(2) For purposes of Sec. 300.18(d)(3), a fully certified regular
education teacher who subsequently becomes fully certified or licensed
as a special education teacher is a new special education teacher when
first hired as a special education teacher.
(h) Private school teachers not covered. The requirements in this
section do not apply to teachers hired by private elementary schools and
secondary schools including private school teachers hired or contracted
by LEAs to provide equitable services to parentally-placed private
school children with disabilities under Sec. 300.138.
(Authority: 20 U.S.C. 1401(10))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.19 Homeless children.
Homeless children has the meaning given the term homeless children
and youths in section 725 (42 U.S.C. 11434a) of the McKinney-Vento
Homeless Assistance Act, as amended, 42 U.S.C. 11431 et seq.
(Authority: 20 U.S.C. 1401(11))
Sec. 300.20 Include.
Include means that the items named are not all of the possible items
that are covered, whether like or unlike the ones named.
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.21 Indian and Indian tribe.
(a) Indian means an individual who is a member of an Indian tribe.
(b) Indian tribe means any Federal or State Indian tribe, band,
rancheria, pueblo, colony, or community, including any Alaska Native
village or regional village corporation (as defined in or established
under the Alaska Native Claims Settlement Act, 43 U.S.C. 1601 et seq.).
(c) Nothing in this definition is intended to indicate that the
Secretary of the Interior is required to provide services or funding to
a State Indian tribe that is not listed in the Federal Register list of
Indian entities recognized as eligible to receive services from the
United States, published pursuant to Section 104 of the Federally
Recognized Indian Tribe List Act of 1994, 25 U.S.C. 479a-1.
(Authority: 20 U.S.C. 1401(12) and (13))
Sec. 300.22 Individualized education program.
Individualized education program or IEP means a written statement
for a child with a disability that is developed, reviewed, and revised
in accordance with Secs. 300.320 through 300.324.
(Authority: 20 U.S.C. 1401(14))
Sec. 300.23 Individualized education program team.
Individualized education program team or IEP Team means a group of
individuals described in Sec. 300.321 that is responsible for
developing, reviewing, or revising an IEP for a child with a disability.
(Authority: 20 U.S.C. 1414(d)(1)(B))
Sec. 300.24 Individualized family service plan.
Individualized family service plan or IFSP has the meaning given the
term in section 636 of the Act.
(Authority: 20 U.S.C. 1401(15))
Sec. 300.25 Infant or toddler with a disability.
Infant or toddler with a disability--
(a) Means an individual under three years of age who needs early
intervention services because the individual--
[[Page 18]]
(1) Is experiencing developmental delays, as measured by appropriate
diagnostic instruments and procedures in one or more of the areas of
cognitive development, physical development, communication development,
social or emotional development, and adaptive development; or
(2) Has a diagnosed physical or mental condition that has a high
probability of resulting in developmental delay; and
(b) May also include, at a State's discretion--
(1) At-risk infants and toddlers; and
(2) Children with disabilities who are eligible for services under
section 619 and who previously received services under Part C of the Act
until such children enter, or are eligible under State law to enter,
kindergarten or elementary school, as appropriate, provided that any
programs under Part C of the Act serving such children shall include--
(i) An educational component that promotes school readiness and
incorporates pre-literacy, language, and numeracy skills; and
(ii) A written notification to parents of their rights and
responsibilities in determining whether their child will continue to
receive services under Part C of the Act or participate in preschool
programs under section 619.
(Authority: 20 U.S.C. 1401(16) and 1432(5))
Sec. 300.26 Institution of higher education.
Institution of higher education--
(a) Has the meaning given the term in section 101 of the Higher
Education Act of 1965, as amended, 20 U.S.C. 1021 et seq. (HEA); and
(b) Also includes any community college receiving funds from the
Secretary of the Interior under the Tribally Controlled Community
College or University Assistance Act of 1978, 25 U.S.C. 1801, et seq.
(Authority: 20 U.S.C. 1401(17))
Sec. 300.27 Limited English proficient.
Limited English proficient has the meaning given the term in section
9101(25) of the ESEA.
(Authority: 20 U.S.C. 1401(18))
Sec. 300.28 Local educational agency.
(a) General. Local educational agency or LEA means a public board of
education or other public authority legally constituted within a State
for either administrative control or direction of, or to perform a
service function for, public elementary or secondary schools in a city,
county, township, school district, or other political subdivision of a
State, or for a combination of school districts or counties as are
recognized in a State as an administrative agency for its public
elementary schools or secondary schools.
(b) Educational service agencies and other public institutions or
agencies. The term includes--
(1) An educational service agency, as defined in Sec. 300.12; and
(2) Any other public institution or agency having administrative
control and direction of a public elementary school or secondary school,
including a public nonprofit charter school that is established as an
LEA under State law.
(c) BIA funded schools. The term includes an elementary school or
secondary school funded by the Bureau of Indian Affairs, and not subject
to the jurisdiction of any SEA other than the Bureau of Indian Affairs,
but only to the extent that the inclusion makes the school eligible for
programs for which specific eligibility is not provided to the school in
another provision of law and the school does not have a student
population that is smaller than the student population of the LEA
receiving assistance under the Act with the smallest student population.
(Authority: 20 U.S.C. 1401(19))
Sec. 300.29 Native language.
(a) Native language, when used with respect to an individual who is
limited English proficient, means the following:
(1) The language normally used by that individual, or, in the case
of a child, the language normally used by the parents of the child,
except as provided in paragraph (a)(2) of this section.
(2) In all direct contact with a child (including evaluation of the
child), the
[[Page 19]]
language normally used by the child in the home or learning environment.
(b) For an individual with deafness or blindness, or for an
individual with no written language, the mode of communication is that
normally used by the individual (such as sign language, Braille, or oral
communication).
(Authority: 20 U.S.C. 1401(20))
Sec. 300.30 Parent.
(a) Parent means--
(1) A biological or adoptive parent of a child;
(2) A foster parent, unless State law, regulations, or contractual
obligations with a State or local entity prohibit a foster parent from
acting as a parent;
(3) A guardian generally authorized to act as the child's parent, or
authorized to make educational decisions for the child (but not the
State if the child is a ward of the State);
(4) An individual acting in the place of a biological or adoptive
parent (including a grandparent, stepparent, or other relative) with
whom the child lives, or an individual who is legally responsible for
the child's welfare; or
(5) A surrogate parent who has been appointed in accordance with
Sec. 300.519 or section 639(a)(5) of the Act.
(b) (1) Except as provided in paragraph (b)(2) of this section, the
biological or adoptive parent, when attempting to act as the parent
under this part and when more than one party is qualified under
paragraph (a) of this section to act as a parent, must be presumed to be
the parent for purposes of this section unless the biological or
adoptive parent does not have legal authority to make educational
decisions for the child.
(2) If a judicial decree or order identifies a specific person or
persons under paragraphs (a)(1) through (4) of this section to act as
the ``parent'' of a child or to make educational decisions on behalf of
a child, then such person or persons shall be determined to be the
``parent'' for purposes of this section.
(Authority: 20 U.S.C. 1401(23))
Sec. 300.31 Parent training and information center.
Parent training and information center means a center assisted under
sections 671 or 672 of the Act.
(Authority: 20 U.S.C. 1401(25))
Sec. 300.32 Personally identifiable.
Personally identifiable means information that contains--
(a) The name of the child, the child's parent, or other family
member;
(b) The address of the child;
(c) A personal identifier, such as the child's social security
number or student number; or
(d) A list of personal characteristics or other information that
would make it possible to identify the child with reasonable certainty.
(Authority: 20 U.S.C. 1415(a))
Sec. 300.33 Public agency.
Public agency includes the SEA, LEAs, ESAs, nonprofit public charter
schools that are not otherwise included as LEAs or ESAs and are not a
school of an LEA or ESA, and any other political subdivisions of the
State that are responsible for providing education to children with
disabilities.
(Authority: 20 U.S.C. 1412(a)(11))
Sec. 300.34 Related services.
(a) General. Related services means transportation and such
developmental, corrective, and other supportive services as are required
to assist a child with a disability to benefit from special education,
and includes speech-language pathology and audiology services,
interpreting services, psychological services, physical and occupational
therapy, recreation, including therapeutic recreation, early
identification and assessment of disabilities in children, counseling
services, including rehabilitation counseling, orientation and mobility
services, and medical services for diagnostic or evaluation purposes.
Related services also include school health services and school nurse
services, social work services in schools, and parent counseling and
training.
[[Page 20]]
(b) Exception; services that apply to children with surgically
implanted devices, including cochlear implants. (1) Related services do
not include a medical device that is surgically implanted, the
optimization of that device's functioning (e.g., mapping), maintenance
of that device, or the replacement of that device.
(2) Nothing in paragraph (b)(1) of this section--
(i) Limits the right of a child with a surgically implanted device
(e.g., cochlear implant) to receive related services (as listed in
paragraph (a) of this section) that are determined by the IEP Team to be
necessary for the child to receive FAPE.
(ii) Limits the responsibility of a public agency to appropriately
monitor and maintain medical devices that are needed to maintain the
health and safety of the child, including breathing, nutrition, or
operation of other bodily functions, while the child is transported to
and from school or is at school; or
(iii) Prevents the routine checking of an external component of a
surgically implanted device to make sure it is functioning properly, as
required in Sec. 300.113(b).
(c) Individual related services terms defined. The terms used in
this definition are defined as follows:
(1) Audiology includes--
(i) Identification of children with hearing loss;
(ii) Determination of the range, nature, and degree of hearing loss,
including referral for medical or other professional attention for the
habilitation of hearing;
(iii) Provision of habilitative activities, such as language
habilitation, auditory training, speech reading (lip-reading), hearing
evaluation, and speech conservation;
(iv) Creation and administration of programs for prevention of
hearing loss;
(v) Counseling and guidance of children, parents, and teachers
regarding hearing loss; and
(vi) Determination of children's needs for group and individual
amplification, selecting and fitting an appropriate aid, and evaluating
the effectiveness of amplification.
(2) Counseling services means services provided by qualified social
workers, psychologists, guidance counselors, or other qualified
personnel.
(3) Early identification and assessment of disabilities in children
means the implementation of a formal plan for identifying a disability
as early as possible in a child's life.
(4) Interpreting services includes--
(i) The following, when used with respect to children who are deaf
or hard of hearing: Oral transliteration services, cued language
transliteration services, sign language transliteration and interpreting
services, and transcription services, such as communication access real-
time translation (CART), C-Print, and TypeWell; and
(ii) Special interpreting services for children who are deaf-blind.
(5) 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.
(6) Occupational therapy--
(i) Means services provided by a qualified occupational therapist;
and
(ii) Includes--
(A) Improving, developing, or restoring functions impaired or lost
through illness, injury, or deprivation;
(B) Improving ability to perform tasks for independent functioning
if functions are impaired or lost; and
(C) Preventing, through early intervention, initial or further
impairment or loss of function.
(7) Orientation and mobility services--
(i) Means services provided to blind or visually impaired children
by qualified personnel to enable those students to attain systematic
orientation to and safe movement within their environments in school,
home, and community; and
(ii) Includes teaching children the following, as appropriate:
(A) Spatial and environmental concepts and use of information
received by the senses (such as sound, temperature and vibrations) to
establish, maintain, or regain orientation and line of travel (e.g.,
using sound at a traffic light to cross the street);
(B) To use the long cane or a service animal to supplement visual
travel
[[Page 21]]
skills or as a tool for safely negotiating the environment for children
with no available travel vision;
(C) To understand and use remaining vision and distance low vision
aids; and
(D) Other concepts, techniques, and tools.
(8)(i) Parent counseling and training means assisting parents in
understanding the special needs of their child;
(ii) Providing parents with information about child development; and
(iii) Helping parents to acquire the necessary skills that will
allow them to support the implementation of their child's IEP or IFSP.
(9) Physical therapy means services provided by a qualified physical
therapist.
(10) 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 educational needs of children as indicated by
psychological tests, interviews, direct observation, and behavioral
evaluations;
(v) Planning and managing a program of psychological services,
including psychological counseling for children and parents; and
(vi) Assisting in developing positive behavioral intervention
strategies.
(11) Recreation includes--
(i) Assessment of leisure function;
(ii) Therapeutic recreation services;
(iii) Recreation programs in schools and community agencies; and
(iv) Leisure education.
(12) Rehabilitation counseling services means services provided by
qualified personnel in individual or group sessions that focus
specifically on career development, employment preparation, achieving
independence, and integration in the workplace and community of a
student with a disability. The term also includes vocational
rehabilitation services provided to a student with a disability by
vocational rehabilitation programs funded under the Rehabilitation Act
of 1973, as amended, 29 U.S.C. 701 et seq.
(13) School health services and school nurse services means health
services that are designed to enable a child with a disability to
receive FAPE as described in the child's IEP. School nurse services are
services provided by a qualified school nurse. School health services
are services that may be provided by either a qualified school nurse or
other qualified person.
(14) Social work services in schools includes--
(i) Preparing a social or developmental history on a child with a
disability;
(ii) Group and individual counseling with the child and family;
(iii) Working in partnership with parents and others on those
problems in a child's living situation (home, school, and community)
that affect the child's adjustment in school;
(iv) Mobilizing school and community resources to enable the child
to learn as effectively as possible in his or her educational program;
and
(v) Assisting in developing positive behavioral intervention
strategies.
(15) Speech-language pathology services includes--
(i) Identification of children with speech or language impairments;
(ii) Diagnosis and appraisal of specific speech or language
impairments;
(iii) Referral for medical or other professional attention necessary
for the habilitation of speech or language impairments;
(iv) Provision of speech and language services for the habilitation
or prevention of communicative impairments; and
(v) Counseling and guidance of parents, children, and teachers
regarding speech and language impairments.
(16) 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(26))
[[Page 22]]
Sec. 300.35 Scientifically based research.
Scientifically based research has the meaning given the term in
section 9101(37) of the ESEA.
(Authority: 20 U.S.C. 1411(e)(2)(C)(xi))
Sec. 300.36 Secondary school.
Secondary school means a nonprofit institutional day or residential
school, including a public secondary charter school that provides
secondary education, as determined under State law, except that it does
not include any education beyond grade 12.
(Authority: 20 U.S.C. 1401(27))
Sec. 300.37 Services plan.
Services plan means a written statement that describes the special
education and related services the LEA will provide to a parentally-
placed child with a disability enrolled in a private school who has been
designated to receive services, including the location of the services
and any transportation necessary, consistent with Sec. 300.132, and is
developed and implemented in accordance with Secs. 300.137 through
300.139.
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.38 Secretary.
Secretary means the Secretary of Education.
(Authority: 20 U.S.C. 1401(28))
Sec. 300.39 Special education.
(a) General. (1) 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) Special education includes each of the following, if the
services otherwise meet the requirements of paragraph (a)(1) of this
section--
(i) Speech-language pathology services, or any other related
service, if the service is considered special education rather than a
related service under State standards;
(ii) Travel training; and
(iii) Vocational education.
(b) Individual special education terms defined. The terms in this
definition are defined as follows:
(1) At no cost means that all specially-designed instruction is
provided without charge, but does not preclude incidental fees that are
normally charged to nondisabled students or their parents as a part of
the regular education program.
(2) Physical education means--
(i) The development of--
(A) Physical and motor fitness;
(B) Fundamental motor skills and patterns; and
(C) Skills in aquatics, dance, and individual and group games and
sports (including intramural and lifetime sports); and
(ii) Includes special physical education, adapted physical
education, movement education, and motor development.
(3) Specially designed instruction means adapting, as appropriate to
the needs of an eligible child under this part, the content,
methodology, or delivery of instruction--
(i) To address the unique needs of the child that result from the
child's disability; and
(ii) To ensure access of the child to the general curriculum, so
that the child can meet the educational standards within the
jurisdiction of the public agency that apply to all children.
(4) Travel training means providing instruction, as appropriate, to
children with significant cognitive disabilities, and any other children
with disabilities who require this instruction, to enable them to--
(i) Develop an awareness of the environment in which they live; and
(ii) Learn the skills necessary to move effectively and safely from
place to place within that environment (e.g., in school, in the home, at
work, and in the community).
(5) Vocational education means organized educational programs that
are directly related to the preparation of individuals for paid or
unpaid employment, or for additional preparation for a career not
requiring a baccalaureate or advanced degree.
(Authority: 20 U.S.C. 1401(29))
[[Page 23]]
Sec. 300.40 State.
State means each of the 50 States, the District of Columbia, the
Commonwealth of Puerto Rico, and each of the outlying areas.
(Authority: 20 U.S.C. 1401(31))
Sec. 300.41 State educational agency.
State educational agency or SEA means the State board of education
or other agency or officer primarily responsible for the State
supervision of public elementary schools and secondary schools, or, if
there is no such officer or agency, an officer or agency designated by
the Governor or by State law.
(Authority: 20 U.S.C. 1401(32))
Sec. 300.42 Supplementary aids and services.
Supplementary aids and services means aids, services, and other
supports that are provided in regular education classes, other
education-related settings, and in extracurricular and nonacademic
settings, to enable children with disabilities to be educated with
nondisabled children to the maximum extent appropriate in accordance
with Secs. 300.114 through 300.116.
(Authority: 20 U.S.C. 1401(33))
Sec. 300.43 Transition services.
(a) Transition services means a coordinated set of activities for a
child with a disability that--
(1) Is designed to be within a results-oriented process, that is
focused on improving the academic and functional achievement of the
child with a disability to facilitate the child's movement from school
to post-school activities, including postsecondary education, vocational
education, integrated employment (including supported employment),
continuing and adult education, adult services, independent living, or
community participation;
(2) Is based on the individual child's needs, taking into account
the child's strengths, preferences, and interests; and includes--
(i) Instruction;
(ii) Related services;
(iii) Community experiences;
(iv) The development of employment and other post-school adult
living objectives; and
(v) If appropriate, acquisition of daily living skills and provision
of a functional vocational evaluation.
(b) Transition services for children with disabilities may be
special education, if provided as specially designed instruction, or a
related service, if required to assist a child with a disability to
benefit from special education.
(Authority: 20 U.S.C. 1401(34))
Sec. 300.44 Universal design.
Universal design has the meaning given the term in section 3 of the
Assistive Technology Act of 1998, as amended, 29 U.S.C. 3002.
(Authority: 20 U.S.C. 1401(35))
Sec. 300.45 Ward of the State.
(a) General. Subject to paragraph (b) of this section, ward of the
State means a child who, as determined by the State where the child
resides, is--
(1) A foster child;
(2) A ward of the State; or
(3) In the custody of a public child welfare agency.
(b) Exception. Ward of the State does not include a foster child who
has a foster parent who meets the definition of a parent in Sec. 300.30.
(Authority: 20 U.S.C. 1401(36))
Subpart B_State Eligibility
General
Sec. 300.100 Eligibility for assistance.
A State is eligible for assistance under Part B of the Act for a
fiscal year if the State submits a plan that provides assurances to the
Secretary that the State has in effect policies and procedures to ensure
that the State meets the conditions in Secs. 300.101 through 300.176.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a))
[[Page 24]]
FAPE Requirements
Sec. 300.101 Free appropriate public education (FAPE).
(a) General. A free appropriate public education must be available
to all children residing in the State between the ages of 3 and 21,
inclusive, including children with disabilities who have been suspended
or expelled from school, as provided for in Sec. 300.530(d).
(b) FAPE for children beginning at age 3. (1) Each State must ensure
that--
(i) The obligation to make FAPE available to each eligible child
residing in the State begins no later than the child's third birthday;
and
(ii) An IEP or an IFSP is in effect for the child by that date, in
accordance with Sec. 300.323(b).
(2) If a child's third birthday occurs during the summer, the
child's IEP Team shall determine the date when services under the IEP or
IFSP will begin.
(c) Children advancing from grade to grade. (1) Each State must
ensure that FAPE is available to any individual child with a disability
who needs special education and related services, even though the child
has not failed or been retained in a course or grade, and is advancing
from grade to grade.
(2) The determination that a child described in paragraph (a) of
this section is eligible under this part, must be made on an individual
basis by the group responsible within the child's LEA for making
eligibility determinations.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1)(A))
Sec. 300.102 Limitation--exception to FAPE for certain ages.
(a) General. The obligation to make FAPE available to all children
with disabilities does not apply with respect to the following:
(1) Children aged 3, 4, 5, 18, 19, 20, or 21 in a State to the
extent that its application to those children would be inconsistent with
State law or practice, or the order of any court, respecting the
provision of public education to children of those ages.
(2)(i) Children aged 18 through 21 to the extent that State law does
not require that special education and related services under Part B of
the Act be provided to students with disabilities who, in the last
educational placement prior to their incarceration in an adult
correctional facility--
(A) Were not actually identified as being a child with a disability
under Sec. 300.8; and
(B) Did not have an IEP under Part B of the Act.
(ii) The exception in paragraph (a)(2)(i) of this section does not
apply to children with disabilities, aged 18 through 21, who--
(A) Had been identified as a child with a disability under
Sec. 300.8 and had received services in accordance with an IEP, but who
left school prior to their incarceration; or
(B) Did not have an IEP in their last educational setting, but who
had actually been identified as a child with a disability under
Sec. 300.8.
(3)(i) Children with disabilities who have graduated from high
school with a regular high school diploma.
(ii) The exception in paragraph (a)(3)(i) of this section does not
apply to children who have graduated from high school but have not been
awarded a regular high school diploma.
(iii) Graduation from high school with a regular high school diploma
constitutes a change in placement, requiring written prior notice in
accordance with Sec. 300.503.
(iv) As used in paragraphs (a)(3)(i) through (a)(3)(iii) of this
section, the term regular high school diploma does not include an
alternative degree that is not fully aligned with the State's academic
standards, such as a certificate or a general educational development
credential (GED).
(4) Children with disabilities who are eligible under subpart H of
this part, but who receive early intervention services under Part C of
the Act.
(b) Documents relating to exceptions. The State must assure that the
information it has provided to the Secretary regarding the exceptions in
[[Page 25]]
paragraph (a) of this section, as required by Sec. 300.700 (for purposes
of making grants to States under this part), is current and accurate.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1)(B)-(C))
Other FAPE Requirements
Sec. 300.103 FAPE--methods and payments.
(a) Each State may use whatever State, local, Federal, and private
sources of support that are available in the State to meet the
requirements of this part. For example, if it is necessary to place a
child with a disability in a residential facility, a State could use
joint agreements between the agencies involved for sharing the cost of
that placement.
(b) Nothing in this part relieves an insurer or similar third party
from an otherwise valid obligation to provide or to pay for services
provided to a child with a disability.
(c) Consistent with Sec. 300.323(c), the State must ensure that
there is no delay in implementing a child's IEP, including any case in
which the payment source for providing or paying for special education
and related services to the child is being determined.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1401(8), 1412(a)(1)).
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.104 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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(10)(B))
Sec. 300.105 Assistive technology.
(a) Each public agency must ensure that assistive technology devices
or assistive technology services, or both, as those terms are defined in
Secs. 300.5 and 300.6, respectively, are made available to a child with
a disability if required as a part of the child's--
(1) Special education under Sec. 300.36;
(2) Related services under Sec. 300.34; or
(3) Supplementary aids and services under Secs. 300.38 and
300.114(a)(2)(ii).
(b) On a case-by-case basis, the use of school-purchased assistive
technology devices in a child's home or in other settings is required if
the child's IEP Team determines that the child needs access to those
devices in order to receive FAPE.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(B)(i))
Sec. 300.106 Extended school year services.
(a) General. (1) Each public agency must ensure that extended school
year services are available as necessary to provide FAPE, consistent
with paragraph (a)(2) of this section.
(2) Extended school year services must be provided only if a child's
IEP Team determines, on an individual basis, in accordance with
Secs. 300.320 through 300.324, that the services are necessary for the
provision of FAPE to the child.
(3) In implementing the requirements of this section, a public
agency may not--
(i) Limit extended school year services to particular categories of
disability; or
(ii) Unilaterally limit the type, amount, or duration of those
services.
(b) Definition. As used in this section, the term extended school
year services means special education and related services that--
(1) Are provided to a child with a disability--
(i) Beyond the normal school year of the public agency;
(ii) In accordance with the child's IEP; and
(iii) At no cost to the parents of the child; and
(2) Meet the standards of the SEA.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1))
[[Page 26]]
Sec. 300.107 Nonacademic services.
The State must ensure the following:
(a) Each public agency must take steps, including the provision of
supplementary aids and services determined appropriate and necessary by
the child's IEP Team, to provide nonacademic and extracurricular
services and activities in the manner necessary to afford children with
disabilities an equal opportunity for participation in those services
and activities.
(b) Nonacademic and extracurricular services and activities may
include counseling services, athletics, transportation, health services,
recreational activities, special interest groups or clubs sponsored by
the public agency, referrals to agencies that provide assistance to
individuals with disabilities, and employment of students, including
both employment by the public agency and assistance in making outside
employment available.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(1))
Sec. 300.108 Physical education.
The State must ensure that public agencies in the State comply with
the following:
(a) General. Physical education services, specially designed if
necessary, must be made available to every child with a disability
receiving FAPE, unless the public agency enrolls children without
disabilities and does not provide physical education to children without
disabilities in the same grades.
(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 must 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 must ensure that the child receives appropriate
physical education services in compliance with this section.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5)(A))
Sec. 300.109 Full educational opportunity goal (FEOG).
The State must have in effect policies and procedures to demonstrate
that the State has established a goal of providing full educational
opportunity to all children with disabilities, aged birth through 21,
and a detailed timetable for accomplishing that goal.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(2))
Sec. 300.110 Program options.
The State must ensure that each public agency takes 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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(2), 1413(a)(1))
Sec. 300.111 Child find.
(a) General. (1) The State must have in effect policies and
procedures to ensure that--
(i) All children with disabilities residing in the State, including
children with disabilities who are homeless children or are wards of the
State, and children with disabilities attending private schools,
regardless of the severity of their disability, and who are in need of
special education and related services, are identified, located, and
evaluated; and
(ii) A practical method is developed and implemented to determine
which
[[Page 27]]
children are currently receiving needed special education and related
services.
(b) Use of term developmental delay. The following provisions apply
with respect to implementing the child find requirements of this
section:
(1) A State that adopts a definition of developmental delay under
Sec. 300.8(b) determines whether the term applies to children aged three
through nine, or to a subset of that age range (e.g., ages three through
five).
(2) A State may not require an LEA to adopt and use the term
developmental delay for any children within its jurisdiction.
(3) If an LEA uses the term developmental delay for children
described in Sec. 300.8(b), the LEA must conform to both the State's
definition of that term and to the age range that has been adopted by
the State.
(4) If a State does not adopt the term developmental delay, an LEA
may not independently use that term as a basis for establishing a
child's eligibility under this part.
(c) Other children in child find. Child find also must include--
(1) Children who are suspected of being a child with a disability
under Sec. 300.8 and in need of special education, even though they are
advancing from grade to grade; and
(2) Highly mobile children, including migrant children.
(d) Construction. Nothing in the Act requires that children be
classified by their disability so long as each child who has a
disability that is listed in Sec. 300.8 and who, by reason of that
disability, needs special education and related services is regarded as
a child with a disability under Part B of the Act.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1401(3)); 1412(a)(3))
Sec. 300.112 Individualized education programs (IEP).
The State must ensure that an IEP, or an IFSP that meets the
requirements of section 636(d) of the Act, is developed, reviewed, and
revised for each child with a disability in accordance with
Secs. 300.320 through 300.324, except as provided in
Sec. 300.300(b)(3)(ii).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(4))
Sec. 300.113 Routine checking of hearing aids and external components
of surgically implanted medical devices.
(a) Hearing aids. Each public agency must ensure that hearing aids
worn in school by children with hearing impairments, including deafness,
are functioning properly.
(b) External components of surgically implanted medical devices. (1)
Subject to paragraph (b)(2) of this section, each public agency must
ensure that the external components of surgically implanted medical
devices are functioning properly.
(2) For a child with a surgically implanted medical device who is
receiving special education and related services under this part, a
public agency is not responsible for the post-surgical maintenance,
programming, or replacement of the medical device that has been
surgically implanted (or of an external component of the surgically
implanted medical device).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1401(1), 1401(26)(B))
Least Restrictive Environment (LRE)
Sec. 300.114 LRE requirements.
(a) General. (1) Except as provided in Sec. 300.324(d)(2) (regarding
children with disabilities in adult prisons), the State must have in
effect policies and procedures to ensure that public agencies in the
State meet the LRE requirements of this section and Secs. 300.115
through 300.120.
(2) Each public agency must ensure that--
(i) 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
(ii) Special classes, separate schooling, or other removal of
children with
[[Page 28]]
disabilities from the regular educational environment occurs only if the
nature or severity of the disability is such that education in regular
classes with the use of supplementary aids and services cannot be
achieved satisfactorily.
(b) Additional requirement--State funding mechanism--(1) General.
(i) A State funding mechanism must not result in placements that violate
the requirements of paragraph (a) of this section; and
(ii) A State must not use a funding mechanism by which the State
distributes funds on the basis of the type of setting in which a child
is served that will result in the failure to provide a child with a
disability FAPE according to the unique needs of the child, as described
in the child's IEP.
(2) Assurance. If the State does not have policies and procedures to
ensure compliance with paragraph (b)(1) of this section, the State must
provide the Secretary an assurance that the State will revise the
funding mechanism as soon as feasible to ensure that the mechanism does
not result in placements that violate that paragraph.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.115 Continuum of alternative placements.
(a) Each public agency must 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. 300.38 (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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.116 Placements.
In determining the educational placement of a child with a
disability, including a preschool child with a disability, each public
agency must ensure that--
(a) The placement decision--
(1) Is made by a group of persons, including the parents, and other
persons knowledgeable about the child, the meaning of the evaluation
data, and the placement options; and
(2) Is made in conformity with the LRE provisions of this subpart,
including Secs. 300.114 through 300.118;
(b) The child's placement--
(1) Is determined at least annually;
(2) Is based on the child's IEP; and
(3) Is as close as possible to the child's home;
(c) Unless the IEP of a child with a disability requires some other
arrangement, the child is educated in the school that he or she would
attend if nondisabled;
(d) In selecting the LRE, consideration is given to any potential
harmful effect on the child or on the quality of services that he or she
needs; and
(e) A child with a disability is not removed from education in age-
appropriate regular classrooms solely because of needed modifications in
the general education curriculum.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.117 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. 300.107, each
public agency must ensure that each child with a disability participates
with nondisabled children in the extracurricular services and activities
to the maximum extent appropriate to the needs of that child. The public
agency must ensure that each child with a disability has the
supplementary aids and services determined
[[Page 29]]
by the child's IEP Team to be appropriate and necessary for the child to
participate in nonacademic settings.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.118 Children in public or private institutions.
Except as provided in Sec. 300.149(d) (regarding agency
responsibility for general supervision of some individuals in adult
prisons), an SEA must ensure that Sec. 300.114 is effectively
implemented, including, if necessary, making arrangements with public
and private institutions (such as a memorandum of agreement or special
implementation procedures).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.119 Technical assistance and training activities.
Each SEA must carry out activities to ensure that teachers and
administrators in all public agencies--
(a) Are fully informed about their responsibilities for implementing
Sec. 300.114; and
(b) Are provided with technical assistance and training necessary to
assist them in this effort.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Sec. 300.120 Monitoring activities.
(a) The SEA must carry out activities to ensure that Sec. 300.114 is
implemented by each public agency.
(b) If there is evidence that a public agency makes placements that
are inconsistent with Sec. 300.114, the SEA must--
(1) Review the public agency's justification for its actions; and
(2) Assist in planning and implementing any necessary corrective
action.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(5))
Additional Eligibility Requirements
Sec. 300.121 Procedural safeguards.
(a) General. The State must have procedural safeguards in effect to
ensure that each public agency in the State meets the requirements of
Secs. 300.500 through 300.536.
(b) Procedural safeguards identified. Children with disabilities and
their parents must be afforded the procedural safeguards identified in
paragraph (a) of this section.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(6)(A))
Sec. 300.122 Evaluation.
Children with disabilities must be evaluated in accordance with
Secs. 300.300 through 300.311 of subpart D of this part.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(7))
Sec. 300.123 Confidentiality of personally identifiable information.
The State must have policies and procedures in effect to ensure that
public agencies in the State comply with Secs. 300.610 through 300.626
related to protecting the confidentiality of any personally identifiable
information collected, used, or maintained under Part B of the Act.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.124 Transition of children from the Part C program to preschool
programs.
The State must have in effect policies and procedures to ensure
that--
(a) Children participating in early intervention programs assisted
under Part C of the Act, and who will participate in preschool programs
assisted under Part B of the Act, experience a smooth and effective
transition to those preschool programs in a manner consistent with
section 637(a)(9) of the Act;
(b) By the third birthday of a child described in paragraph (a) of
this section, an IEP or, if consistent with
[[Page 30]]
Sec. 300.323(b) and section 636(d) of the Act, an IFSP, has been
developed and is being implemented for the child consistent with
Sec. 300.101(b); and
(c) Each affected LEA will participate in transition planning
conferences arranged by the designated lead agency under section
635(a)(10) of the Act.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(9))
Secs. 300.125-300.128 [Reserved]
Children in Private Schools
Sec. 300.129 State responsibility regarding children in private schools.
The State must have in effect policies and procedures that ensure
that LEAs, and, if applicable, the SEA, meet the private school
requirements in Secs. 300.130 through 300.148.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10))
Children With Disabilities Enrolled by Their Parents in Private Schools
Sec. 300.130 Definition of parentally-placed private school children
with disabilities.
Parentally-placed private school children with disabilities means
children with disabilities enrolled by their parents in private,
including religious, schools or facilities that meet the definition of
elementary school in Sec. 300.13 or secondary school in Sec. 300.36,
other than children with disabilities covered under Secs. 300.145
through 300.147.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.131 Child find for parentally-placed private school children
with disabilities.
(a) General. Each LEA must locate, identify, and evaluate all
children with disabilities who are enrolled by their parents in private,
including religious, elementary schools and secondary schools located in
the school district served by the LEA, in accordance with paragraphs (b)
through (e) of this section, and Secs. 300.111 and 300.201.
(b) Child find design. The child find process must be designed to
ensure--
(1) The equitable participation of parentally-placed private school
children; and
(2) An accurate count of those children.
(c) Activities. In carrying out the requirements of this section,
the LEA, or, if applicable, the SEA, must undertake activities similar
to the activities undertaken for the agency's public school children.
(d) Cost. The cost of carrying out the child find requirements in
this section, including individual evaluations, may not be considered in
determining if an LEA has met its obligation under Sec. 300.133.
(e) Completion period. The child find process must be completed in a
time period comparable to that for students attending public schools in
the LEA consistent with Sec. 300.301.
(f) Out-of-State children. Each LEA in which private, including
religious, elementary schools and secondary schools are located must, in
carrying out the child find requirements in this section, include
parentally-placed private school children who reside in a State other
than the State in which the private schools that they attend are
located.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(ii))
Sec. 300.132 Provision of services for parentally-placed private school
children with disabilities--basic requirement.
(a) General. To the extent consistent with the number and location
of children with disabilities who are enrolled by their parents in
private, including religious, elementary schools and secondary schools
located in the school district served by the LEA, provision is made for
the participation of those children in the program assisted or carried
out under Part B of the Act by providing them with special education and
related services, including direct services determined in accordance
with Sec. 300.137, unless the Secretary has arranged for services to
those children under the by-pass provisions in Secs. 300.190 through
300.198.
[[Page 31]]
(b) Services plan for parentally-placed private school children with
disabilities. In accordance with paragraph (a) of this section and
Secs. 300.137 through 300.139, a services plan must be developed and
implemented for each private school child with a disability who has been
designated by the LEA in which the private school is located to receive
special education and related services under this part.
(c) Record keeping. Each LEA must maintain in its records, and
provide to the SEA, the following information related to parentally-
placed private school children covered under Secs. 300.130 through
300.144:
(1) The number of children evaluated;
(2) The number of children determined to be children with
disabilities; and
(3) The number of children served.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(i))
Sec. 300.133 Expenditures.
(a) Formula. To meet the requirement of Sec. 300.132(a), each LEA
must spend the following on providing special education and related
services (including direct services) to parentally-placed private school
children with disabilities:
(1) For children aged 3 through 21, an amount that is the same
proportion of the LEA's total subgrant under section 611(f) of the Act
as the number of private school children with disabilities aged 3
through 21 who are enrolled by their parents in private, including
religious, elementary schools and secondary schools located in the
school district served by the LEA, is to the total number of children
with disabilities in its jurisdiction aged 3 through 21.
(2)(i) For children aged three through five, an amount that is the
same proportion of the LEA's total subgrant under section 619(g) of the
Act as the number of parentally-placed private school children with
disabilities aged three through five who are enrolled by their parents
in a private, including religious, elementary school located in the
school district served by the LEA, is to the total number of children
with disabilities in its jurisdiction aged three through five.
(ii) As described in paragraph (a)(2)(i) of this section, children
aged three through five are considered to be parentally-placed private
school children with disabilities enrolled by their parents in private,
including religious, elementary schools, if they are enrolled in a
private school that meets the definition of elementary school in
Sec. 300.13.
(3) If an LEA has not expended for equitable services all of the
funds described in paragraphs (a)(1) and (a)(2) of this section by the
end of the fiscal year for which Congress appropriated the funds, the
LEA must obligate the remaining funds for special education and related
services (including direct services) to parentally-placed private school
children with disabilities during a carry-over period of one additional
year.
(b) Calculating proportionate amount. In calculating the
proportionate amount of Federal funds to be provided for parentally-
placed private school children with disabilities, the LEA, after timely
and meaningful consultation with representatives of private schools
under Sec. 300.134, must conduct a thorough and complete child find
process to determine the number of parentally-placed children with
disabilities attending private schools located in the LEA. (See appendix
B for an example of how proportionate share is calculated).
(c) Annual count of the number of parentally-placed private school
children with disabilities. (1) Each LEA must--
(i) After timely and meaningful consultation with representatives of
parentally-placed private school children with disabilities (consistent
with Sec. 300.134), determine the number of parentally-placed private
school children with disabilities attending private schools located in
the LEA; and
(ii) Ensure that the count is conducted on any date between October
1 and December 1, inclusive, of each year.
(2) The count must be used to determine the amount that the LEA must
spend on providing special education and related services to parentally-
[[Page 32]]
placed private school children with disabilities in the next subsequent
fiscal year.
(d) Supplement, not supplant. State and local funds may supplement
and in no case supplant the proportionate amount of Federal funds
required to be expended for parentally-placed private school children
with disabilities under this part.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.134 Consultation.
To ensure timely and meaningful consultation, an LEA, or, if
appropriate, an SEA, must consult with private school representatives
and representatives of parents of parentally-placed private school
children with disabilities during the design and development of special
education and related services for the children regarding the following:
(a) Child find. The child find process, including--
(1) How parentally-placed private school children suspected of
having a disability can participate equitably; and
(2) How parents, teachers, and private school officials will be
informed of the process.
(b) Proportionate share of funds. The determination of the
proportionate share of Federal funds available to serve parentally-
placed private school children with disabilities under Sec. 300.133(b),
including the determination of how the proportionate share of those
funds was calculated.
(c) Consultation process. The consultation process among the LEA,
private school officials, and representatives of parents of parentally-
placed private school children with disabilities, including how the
process will operate throughout the school year to ensure that
parentally-placed children with disabilities identified through the
child find process can meaningfully participate in special education and
related services.
(d) Provision of special education and related services. How, where,
and by whom special education and related services will be provided for
parentally-placed private school children with disabilities, including a
discussion of--
(1) The types of services, including direct services and alternate
service delivery mechanisms; and
(2) How special education and related services will be apportioned
if funds are insufficient to serve all parentally-placed private school
children; and
(3) How and when those decisions will be made;
(e) Written explanation by LEA regarding services. How, if the LEA
disagrees with the views of the private school officials on the
provision of services or the types of services (whether provided
directly or through a contract), the LEA will provide to the private
school officials a written explanation of the reasons why the LEA chose
not to provide services directly or through a contract.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iii))
Sec. 300.135 Written affirmation.
(a) When timely and meaningful consultation, as required by
Sec. 300.134, has occurred, the LEA must obtain a written affirmation
signed by the representatives of participating private schools.
(b) If the representatives do not provide the affirmation within a
reasonable period of time, the LEA must forward the documentation of the
consultation process to the SEA.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(iv))
Sec. 300.136 Compliance.
(a) General. A private school official has the right to submit a
complaint to the SEA that the LEA--
(1) Did not engage in consultation that was meaningful and timely;
or
(2) Did not give due consideration to the views of the private
school official.
(b) Procedure. (1) If the private school official wishes to submit a
complaint, the official must provide to the SEA the basis of the
noncompliance by the
[[Page 33]]
LEA with the applicable private school provisions in this part; and
(2) The LEA must forward the appropriate documentation to the SEA.
(3)(i) If the private school official is dissatisfied with the
decision of the SEA, the official may submit a complaint to the
Secretary by providing the information on noncompliance described in
paragraph (b)(1) of this section; and
(ii) The SEA must forward the appropriate documentation to the
Secretary.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1412(a)(10)(A)(v))
Sec. 300.137 Equitable services determined.
(a) No individual right to special education and related services.
No parentally-placed private school child with a disability has an
individual right to receive some or all of the special education and
related services that the child would receive if enrolled in a public
school.
(b) Decisions. (1) Decisions about the services that will be
provided to parentally-placed private school children with disabilities
under Secs. 300.130 through 300.144 must be made in accordance with
paragraph (c) of this section and Sec. 300.134(d).
(2) The LEA must make the final decisions with respect to the
services to be provided to eligible parentally-placed private school
children with disabilities.
(c) Services plan for each child served under Secs. 300.130 through
300.144. If a child with a disability is enrolled in a religious or
other private school by the child's parents and will receive special
education or related services from an LEA, the LEA must--
(1) Initiate and conduct meetings to develop, review, and revise a
services plan for the child, in accordance with Sec. 300.138(b); and
(2) Ensure that a representative of the religious or other private
school attends each meeting. If the representative cannot attend, the
LEA shall use other methods to ensure participation by the religious or
other private school, including individual or conference telephone
calls.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.138 Equitable services provided.
(a) General. (1) The services provided to parentally-placed private
school children with disabilities must be provided by personnel meeting
the same standards as personnel providing services in the public
schools, except that private elementary school and secondary school
teachers who are providing equitable services to parentally-placed
private school children with disabilities do not have to meet the highly
qualified special education teacher requirements of Sec. 300.18.
(2) Parentally-placed private school children with disabilities may
receive a different amount of services than children with disabilities
in public schools.
(b) Services provided in accordance with a services plan. (1) Each
parentally-placed private school child with a disability who has been
designated to receive services under Sec. 300.132 must have a services
plan that describes the specific special education and related services
that the LEA will provide to the child in light of the services that the
LEA has determined, through the process described in Secs. 300.134 and
300.137, it will make available to parentally-placed private school
children with disabilities.
(2) The services plan must, to the extent appropriate--
(i) Meet the requirements of Sec. 300.320, or for a child ages three
through five, meet the requirements of Sec. 300.323(b) with respect to
the services provided; and
(ii) Be developed, reviewed, and revised consistent with
Secs. 300.321 through 300.324.
(c) Provision of equitable services. (1) The provision of services
pursuant to this section and Secs. 300.139 through 300.143 must be
provided:
(i) By employees of a public agency; or
[[Page 34]]
(ii) Through contract by the public agency with an individual,
association, agency, organization, or other entity.
(2) Special education and related services provided to parentally-
placed private school children with disabilities, including materials
and equipment, must be secular, neutral, and nonideological.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vi))
Sec. 300.139 Location of services and transportation.
(a) Services on private school premises. Services to parentally-
placed private school children with disabilities may be provided on the
premises of private, including religious, schools, to the extent
consistent with law.
(b) Transportation--(1) General. (i) If necessary for the child to
benefit from or participate in the services provided under this part, a
parentally-placed private school child with a disability must be
provided transportation--
(A) From the child's school or the child's home to a site other than
the private school; and
(B) From the service site to the private school, or to the child's
home, depending on the timing of the services.
(ii) LEAs are not required to provide transportation from the
child's home to the private school.
(2) Cost of transportation. The cost of the transportation described
in paragraph (b)(1)(i) of this section may be included in calculating
whether the LEA has met the requirement of Sec. 300.133.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.140 Due process complaints and State complaints.
(a) Due process not applicable, except for child find. (1) Except as
provided in paragraph (b) of this section, the procedures in
Secs. 300.504 through 300.519 do not apply to complaints that an LEA has
failed to meet the requirements of Secs. 300.132 through 300.139,
including the provision of services indicated on the child's services
plan.
(b) Child find complaints--to be filed with the LEA in which the
private school is located. (1) The procedures in Secs. 300.504 through
300.519 apply to complaints that an LEA has failed to meet the child
find requirements in Sec. 300.131, including the requirements in
Secs. 300.300 through 300.311.
(2) Any due process complaint regarding the child find requirements
(as described in paragraph (b)(1) of this section) must be filed with
the LEA in which the private school is located and a copy must be
forwarded to the SEA.
(c) State complaints. (1) Any complaint that an SEA or LEA has
failed to meet the requirements in Secs. 300.132 through 300.135 and
300.137 through 300.144 must be filed in accordance with the procedures
described in Secs. 300.151 through 300.153.
(2) A complaint filed by a private school official under
Sec. 300.136(a) must be filed with the SEA in accordance with the
procedures in Sec. 300.136(b).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.141 Requirement that funds not benefit a private school.
(a) An LEA may not use funds provided under section 611 or 619 of
the Act to finance the existing level of instruction in a private school
or to otherwise benefit the private school.
(b) The LEA must use funds provided under Part B of the Act to meet
the special education and related services needs of parentally-placed
private school children with disabilities, but not for meeting--
(1) The needs of a private school; or
(2) The general needs of the students enrolled in the private
school.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.142 Use of personnel.
(a) Use of public school personnel. An LEA may use funds available
under sections 611 and 619 of the Act to make public school personnel
available in other than public facilities--
(1) To the extent necessary to provide services under Secs. 300.130
through 300.144
[[Page 35]]
for parentally-placed private school children with disabilities; and
(2) If those services are not normally provided by the private
school.
(b) Use of private school personnel. An LEA may use funds available
under sections 611 and 619 of the Act to pay for the services of an
employee of a private school to provide services under Secs. 300.130
through 300.144 if--
(1) The employee performs the services outside of his or her regular
hours of duty; and
(2) The employee performs the services under public supervision and
control.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.143 Separate classes prohibited.
An LEA may not use funds available under section 611 or 619 of the
Act for classes that are organized separately on the basis of school
enrollment or religion of the children if--'
(a) The classes are at the same site; and
(b) The classes include children enrolled in public schools and
children enrolled in private schools.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A))
Sec. 300.144 Property, equipment, and supplies.
(a) A public agency must control and administer the funds used to
provide special education and related services under Secs. 300.137
through 300.139, and hold title to and administer materials, equipment,
and property purchased with those funds for the uses and purposes
provided in the Act.
(b) The public agency may place equipment and supplies in a private
school for the period of time needed for the Part B program.
(c) The public agency must ensure that the equipment and supplies
placed in a private school--
(1) Are used only for Part B purposes; and
(2) Can be removed from the private school without remodeling the
private school facility.
(d) The public agency must remove equipment and supplies from a
private school if--
(1) The equipment and supplies are no longer needed for Part B
purposes; or
(2) Removal is necessary to avoid unauthorized use of the equipment
and supplies for other than Part B purposes.
(e) No funds under Part B of the Act may be used for repairs, minor
remodeling, or construction of private school facilities.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(A)(vii))
Children With Disabilities in Private Schools Placed or Referred by
Public Agencies
Sec. 300.145 Applicability of Secs. 300.146 through 300.147.
Sections 300.146 through 300.147 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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.146 Responsibility of SEA.
Each SEA must 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. 300.320 through 300.325; and
(2) At no cost to the parents;
(b) Is provided an education that meets the standards that apply to
education provided by the SEA and LEAs including the requirements of
this part, except for Sec. 300.18 and Sec. 300.156(c); and
(c) Has all of the rights of a child with a disability who is served
by a public agency.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
[[Page 36]]
Sec. 300.147 Implementation by SEA.
In implementing Sec. 300.146, the SEA must--
(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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(B))
Children With Disabilities Enrolled by Their Parents in Private Schools
When FAPE Is at Issue
Sec. 300.148 Placement of children by parents when FAPE is at issue.
(a) General. This part does not require an LEA to pay for the cost
of education, including special education and related services, of a
child with a disability at a private school or facility if that agency
made FAPE available to the child and the parents elected to place the
child in a private school or facility. However, the public agency must
include that child in the population whose needs are addressed
consistent with Secs. 300.131 through 300.144.
(b) Disagreements about FAPE. Disagreements between the parents and
a public agency regarding the availability of a program appropriate for
the child, and the question of financial reimbursement, are subject to
the due process procedures in Secs. 300.504 through 300.520.
(c) Reimbursement for private school placement. If the parents of a
child with a disability, who previously received special education and
related services under the authority of a public agency, enroll the
child in a private preschool, elementary school, or secondary school
without the consent of or referral by the public agency, a court or a
hearing officer may require the agency to reimburse the parents for the
cost of that enrollment if the court or hearing officer finds that the
agency had not made FAPE available to the child in a timely manner prior
to that enrollment and that the private placement is appropriate. A
parental placement may be found to be appropriate by a hearing officer
or a court even if it does not meet the State standards that apply to
education provided by the SEA and LEAs.
(d) Limitation on reimbursement. The cost of reimbursement described
in paragraph (c) of this section may be reduced or denied--
(1) If--
(i) At the most recent IEP Team meeting that the parents attended
prior to removal of the child from the public school, the parents did
not inform the IEP Team that they were rejecting the placement proposed
by the public agency to provide FAPE to their child, including stating
their concerns and their intent to enroll their child in a private
school at public expense; or
(ii) At least ten (10) business days (including any holidays that
occur on a business day) prior to the removal of the child from the
public school, the parents did not give written notice to the public
agency of the information described in paragraph (d)(1)(i) of this
section;
(2) If, prior to the parents' removal of the child from the public
school, the public agency informed the parents, through the notice
requirements described in Sec. 300.503(a)(1), of its intent to evaluate
the child (including a statement of the purpose of the evaluation that
was appropriate and reasonable), but the parents did not make the child
available for the evaluation; or
(3) Upon a judicial finding of unreasonableness with respect to
actions taken by the parents.
(e) Exception. Notwithstanding the notice requirement in paragraph
(d)(1) of this section, the cost of reimbursement--
(1) Must not be reduced or denied for failure to provide the notice
if--
(i) The school prevented the parents from providing the notice;
(ii) The parents had not received notice, pursuant to Sec. 300.504,
of the notice requirement in paragraph (d)(1) of this section; or
[[Page 37]]
(iii) Compliance with paragraph (d)(1) of this section would likely
result in physical harm to the child; and
(2) May, in the discretion of the court or a hearing officer, not be
reduced or denied for failure to provide this notice if--
(i) The parents are not literate or cannot write in English; or
(ii) Compliance with paragraph (d)(1) of this section would likely
result in serious emotional harm to the child.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(10)(C))
SEA Responsibility for General Supervision and Implementation of
Procedural Safeguards
Sec. 300.149 SEA responsibility for general supervision.
(a) The SEA is responsible for ensuring--
(1) That the requirements of this part are carried out; and
(2) That each educational program for children with disabilities
administered within the State, including each program administered by
any other State or local agency (but not including elementary schools
and secondary schools for Indian children operated or funded by the
Secretary of the Interior)--
(i) Is under the general supervision of the persons responsible for
educational programs for children with disabilities in the SEA; and
(ii) Meets the educational standards of the SEA (including the
requirements of this part).
(3) In carrying out this part with respect to homeless children, the
requirements of subtitle B of title VII of the McKinney-Vento Homeless
Assistance Act (42 U.S.C. 11431 et seq.) are met.
(b) The State must have in effect policies and procedures to ensure
that it complies with the monitoring and enforcement requirements in
Secs. 300.600 through 300.602 and Secs. 300.606 through 300.608.
(c) Part B of the Act does not limit the responsibility of agencies
other than educational agencies for providing or paying some or all of
the costs of FAPE to children with disabilities in the State.
(d) Notwithstanding paragraph (a) of this section, the Governor (or
another individual pursuant to State law) may assign to any public
agency in the State the responsibility of ensuring that the requirements
of Part B of the Act are met with respect to students with disabilities
who are convicted as adults under State law and incarcerated in adult
prisons.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(11); 1416)
Sec. 300.150 SEA implementation of procedural safeguards.
The SEA (and any agency assigned responsibility pursuant to
Sec. 300.149(d)) must have in effect procedures 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.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(11); 1415(a))
State Complaint Procedures
Sec. 300.151 Adoption of State complaint procedures.
(a) General. Each SEA must adopt written procedures for--
(1) Resolving any complaint, including a complaint filed by an
organization or individual from another State, that meets the
requirements of Sec. 300.153 by--
(i) Providing for the filing of a complaint with the SEA; and
(ii) At the SEA's discretion, providing for the filing of a
complaint with a public agency and the right to have the SEA review the
public agency's decision on the complaint; and
(2) Widely disseminating to parents and other interested
individuals, including parent training and information centers,
protection and advocacy agencies, independent living centers, and other
appropriate entities, the State procedures under Secs. 300.151 through
300.153.
(b) Remedies for denial of appropriate services. In resolving a
complaint in which the SEA has found a failure to provide appropriate
services, an SEA,
[[Page 38]]
pursuant to its general supervisory authority under Part B of the Act,
must address--
(1) The failure to provide appropriate services, including
corrective action appropriate to address the needs of the child (such as
compensatory services or monetary reimbursement); and
(2) Appropriate future provision of services for all children with
disabilities.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.152 Minimum State complaint procedures.
(a) Time limit; minimum procedures. Each SEA must include in its
complaint procedures a time limit of 60 days after a complaint is filed
under Sec. 300.153 to--
(1) Carry out an independent on-site investigation, if the SEA
determines that an investigation is necessary;
(2) Give the complainant the opportunity to submit additional
information, either orally or in writing, about the allegations in the
complaint;
(3) Provide the public agency with the opportunity to respond to the
complaint, including, at a minimum--
(i) At the discretion of the public agency, a proposal to resolve
the complaint; and
(ii) An opportunity for a parent who has filed a complaint and the
public agency to voluntarily engage in mediation consistent with
Sec. 300.506;
(4) 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
(5) Issue a written decision to the complainant that addresses each
allegation in the complaint and contains--
(i) Findings of fact and conclusions; and
(ii) The reasons for the SEA's final decision.
(b) Time extension; final decision; implementation. The SEA's
procedures described in paragraph (a) of this section also must--
(1) Permit an extension of the time limit under paragraph (a) of
this section only if--
(i) Exceptional circumstances exist with respect to a particular
complaint; or
(ii) The parent (or individual or organization, if mediation or
other alternative means of dispute resolution is available to the
individual or organization under State procedures) and the public agency
involved agree to extend the time to engage in mediation pursuant to
paragraph (a)(3)(ii) of this section, or to engage in other alternative
means of dispute resolution, if available in the State; and
(2) Include procedures for effective implementation of the SEA's
final decision, if needed, including--
(i) Technical assistance activities;
(ii) Negotiations; and
(iii) Corrective actions to achieve compliance.
(c) Complaints filed under this section and due process hearings
under Sec. 300.507 and Secs. 300.530 through 300.532. (1) If a written
complaint is received that is also the subject of a due process hearing
under Sec. 300.507 or Secs. 300.530 through 300.532, or contains
multiple issues of which one or more are part of that hearing, the State
must set aside any part of the complaint that is being addressed in the
due process hearing until the conclusion of the hearing. However, any
issue in the complaint that is not a part of the due process action must
be resolved using the time limit and procedures described in paragraphs
(a) and (b) of this section.
(2) If an issue raised in a complaint filed under this section has
previously been decided in a due process hearing involving the same
parties--
(i) The due process hearing decision is binding on that issue; and
(ii) The SEA must inform the complainant to that effect.
(3) A complaint alleging a public agency's failure to implement a
due process hearing decision must be resolved by the SEA.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Sec. 300.153 Filing a complaint.
(a) An organization or individual may file a signed written
complaint
[[Page 39]]
under the procedures described in Secs. 300.151 through 300.152.
(b) The complaint must include--
(1) A statement that a public agency has violated a requirement of
Part B of the Act or of this part;
(2) The facts on which the statement is based;
(3) The signature and contact information for the complainant; and
(4) If alleging violations with respect to a specific child--
(i) The name and address of the residence of the child;
(ii) The name of the school the child is attending;
(iii) In the case of a homeless child or youth (within the meaning
of section 725(2) of the McKinney-Vento Homeless Assistance Act (42
U.S.C. 11434a(2)), available contact information for the child, and the
name of the school the child is attending;
(iv) A description of the nature of the problem of the child,
including facts relating to the problem; and
(v) A proposed resolution of the problem to the extent known and
available to the party at the time the complaint is filed.
(c) The complaint must allege a violation that occurred not more
than one year prior to the date that the complaint is received in
accordance with Sec. 300.151.
(d) The party filing the complaint must forward a copy of the
complaint to the LEA or public agency serving the child at the same time
the party files the complaint with the SEA.
(Approved by the Office of Management and Budget under control numbers
1820-0030 and 1820-0600)
(Authority: 20 U.S.C. 1221e-3)
Methods of Ensuring Services
Sec. 300.154 Methods of ensuring services.
(a) Establishing responsibility for services. The Chief Executive
Officer of a State or designee of that officer must ensure that an
interagency agreement or other mechanism for interagency coordination is
in effect between each noneducational public agency described in
paragraph (b) of this section and the SEA, in order to ensure that all
services described in paragraph (b)(1) of this section that are needed
to ensure FAPE are provided, including the provision of these services
during the pendency of any dispute under paragraph (a)(3) of this
section. The agreement or mechanism must include the following:
(1) An identification of, or a method for defining, the financial
responsibility of each agency for providing services described in
paragraph (b)(1) of this section to ensure FAPE to children with
disabilities. The financial responsibility of each noneducational public
agency described in paragraph (b) of this section, including the State
Medicaid agency and other public insurers of children with disabilities,
must precede the financial responsibility of the LEA (or the State
agency responsible for developing the child's IEP).
(2) The conditions, terms, and procedures under which an LEA must be
reimbursed by other agencies.
(3) Procedures for resolving interagency disputes (including
procedures under which LEAs may initiate proceedings) under the
agreement or other mechanism to secure reimbursement from other agencies
or otherwise implement the provisions of the agreement or mechanism.
(4) Policies and procedures for agencies to determine and identify
the interagency coordination responsibilities of each agency to promote
the coordination and timely and appropriate delivery of services
described in paragraph (b)(1) of this section.
(b) Obligation of noneducational public agencies. (1)(i) If any
public agency other than an educational agency is otherwise obligated
under Federal or State law, or assigned responsibility under State
policy or pursuant to paragraph (a) of this section, to provide or pay
for any services that are also considered special education or related
services (such as, but not limited to, services described in Sec. 300.5
relating to assistive technology devices, Sec. 300.6 relating to
assistive technology services, Sec. 300.34 relating to related services,
Sec. 300.41 relating to supplementary aids and services, and Sec. 300.42
relating to transition services) that are necessary for ensuring FAPE to
children with disabilities within the State, the public agency must
fulfill that obligation or
[[Page 40]]
responsibility, either directly or through contract or other arrangement
pursuant to paragraph (a) of this section or an agreement pursuant to
paragraph (c) of this section.
(ii) A noneducational public agency described in paragraph (b)(1)(i)
of this section may not disqualify an eligible service for Medicaid
reimbursement because that service is provided in a school context.
(2) If a public agency other than an educational agency fails to
provide or pay for the special education and related services described
in paragraph (b)(1) of this section, the LEA (or State agency
responsible for developing the child's IEP) must provide or pay for
these services to the child in a timely manner. The LEA or State agency
is authorized to claim reimbursement for the services from the
noneducational public agency that failed to provide or pay for these
services and that agency must reimburse the LEA or State agency in
accordance with the terms of the interagency agreement or other
mechanism described in paragraph (a) of this section.
(c) Special rule. The requirements of paragraph (a) of this section
may be met through--
(1) State statute or regulation;
(2) Signed agreements between respective agency officials that
clearly identify the responsibilities of each agency relating to the
provision of services; or
(3) Other appropriate written methods as determined by the Chief
Executive Officer of the State or designee of that officer and approved
by the Secretary.
(d) Children with disabilities who are covered by public benefits or
insurance. (1) A public agency may use the Medicaid or other public
benefits or insurance programs in which a child participates to provide
or pay for services required under this part, as permitted under the
public benefits or insurance program, except as provided in paragraph
(d)(2) of this section.
(2) With regard to services required to provide FAPE to an eligible
child under this part, the public agency--
(i) May not require parents to sign up for or enroll in public
benefits or insurance programs in order for their child to receive FAPE
under Part B of the Act;
(ii) May not require parents to incur an out-of-pocket expense such
as the payment of a deductible or co-pay amount incurred in filing a
claim for services provided pursuant to this part, but pursuant to
paragraph (g)(2) of this section, may pay the cost that the parents
otherwise would be required to pay;
(iii) May not use a child's benefits under a public benefits or
insurance program if that use would--
(A) Decrease available lifetime coverage or any other insured
benefit;
(B) Result in the family paying for services that would otherwise be
covered by the public benefits or insurance program and that are
required for the child outside of the time the child is in school;
(C) Increase premiums or lead to the discontinuation of benefits or
insurance; or
(D) Risk loss of eligibility for home and community-based waivers,
based on aggregate health-related expenditures; and
(iv) Prior to accessing a child's or parent's public benefits or
insurance for the first time, and after providing notification to the
child's parents consistent with paragraph (d)(2)(v) of this section,
must obtain written, parental consent that--
(A) Meets the requirements of Sec. 99.30 of this title and
Sec. 300.622, which consent must specify the personally identifiable
information that may be disclosed (e.g., records or information about
the services that may be provided to a particular child), the purpose of
the disclosure (e.g., billing for services under part 300), and the
agency to which the disclosure may be made (e.g., the State's public
benefits or insurance program (e.g., Medicaid)); and
(B) Specifies that the parent understands and agrees that the public
agency may access the parent's or child's public benefits or insurance
to pay for services under part 300.
(v) Prior to accessing a child's or parent's public benefits or
insurance for the first time, and annually thereafter, must provide
written notification, consistent with Sec. 300.503(c), to the child's
parents, that includes--
[[Page 41]]
(A) A statement of the parental consent provisions in paragraphs
(d)(2)(iv)(A) and (B) of this section;
(B) A statement of the ``no cost'' provisions in paragraphs
(d)(2)(i) through (iii) of this section;
(C) A statement that the parents have the right under 34 CFR part 99
and part 300 to withdraw their consent to disclosure of their child's
personally identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid) at any time; and
(D) A statement that the withdrawal of consent or refusal to provide
consent under 34 CFR part 99 and part 300 to disclose personally
identifiable information to the agency responsible for the
administration of the State's public benefits or insurance program
(e.g., Medicaid) does not relieve the public agency of its
responsibility to ensure that all required services are provided at no
cost to the parents.
(e) Children with disabilities who are covered by private insurance.
(1) With regard to services required to provide FAPE to an eligible
child under this part, a public agency may access the parents' private
insurance proceeds only if the parents provide consent consistent with
Sec. 300.9.
(2) Each time the public agency proposes to access the parents'
private insurance proceeds, the agency must--
(i) Obtain parental consent in accordance with paragraph (e)(1) of
this section; and
(ii) Inform the parents that their refusal to permit the public
agency to access their private insurance does not relieve the public
agency of its responsibility to ensure that all required services are
provided at no cost to the parents.
(f) Use of Part B funds. (1) If a public agency is unable to obtain
parental consent to use the parents' private insurance, or public
benefits or insurance when the parents would incur a cost for a
specified service required under this part, to ensure FAPE the public
agency may use its Part B funds to pay for the service.
(2) To avoid financial cost to parents who otherwise would consent
to use private insurance, or public benefits or insurance if the parents
would incur a cost, the public agency may use its Part B funds to pay
the cost that the parents otherwise would have to pay to use the
parents' benefits or insurance (e.g., the deductible or co-pay amounts).
(g) Proceeds from public benefits or insurance or private insurance.
(1) Proceeds from public benefits or insurance or private insurance will
not be treated as program income for purposes of 2 CFR 200.307
(2) If a public agency spends reimbursements from Federal funds
(e.g., Medicaid) for services under this part, those funds will not be
considered ``State or local'' funds for purposes of the maintenance of
effort provisions in Secs. 300.163 and 300.203.
(h) Construction. Nothing in this part should be construed to alter
the requirements imposed on a State Medicaid agency, or any other agency
administering a public benefits or insurance program by Federal statute,
regulations or policy under title XIX, or title XXI of the Social
Security Act, 42 U.S.C. 1396 through 1396v and 42 U.S.C. 1397aa through
1397jj, or any other public benefits or insurance program.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(12) and (e))
[71 FR 46753, Aug. 14, 2006, as amended at 78 FR 10537, Feb. 14, 2013;
79 FR 76096, Dec. 19, 2014]
Additional Eligibility Requirements
Sec. 300.155 Hearings relating to LEA eligibility.
The SEA must not make any final determination that an LEA is not
eligible for assistance under Part B of the Act without first giving the
LEA reasonable notice and an opportunity for a hearing under 34 CFR
76.401(d).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(13))
Sec. 300.156 Personnel qualifications.
(a) General. The SEA must establish and maintain qualifications to
ensure that personnel necessary to carry out the purposes of this part
are appropriately and adequately prepared and
[[Page 42]]
trained, including that those personnel have the content knowledge and
skills to serve children with disabilities.
(b) Related services personnel and paraprofessionals. The
qualifications under paragraph (a) of this section must include
qualifications for related services personnel and paraprofessionals
that--
(1) Are consistent with any State-approved or State-recognized
certification, licensing, registration, or other comparable requirements
that apply to the professional discipline in which those personnel are
providing special education or related services; and
(2) Ensure that related services personnel who deliver services in
their discipline or profession--
(i) Meet the requirements of paragraph (b)(1) of this section; and
(ii) Have not had certification or licensure requirements waived on
an emergency, temporary, or provisional basis; and
(iii) Allow paraprofessionals and assistants who are appropriately
trained and supervised, in accordance with State law, regulation, or
written policy, in meeting the requirements of this part to be used to
assist in the provision of special education and related services under
this part to children with disabilities.
(c) Qualifications for special education teachers. The
qualifications described in paragraph (a) of this section must ensure
that each person employed as a public school special education teacher
in the State who teaches in an elementary school, middle school, or
secondary school is highly qualified as a special education teacher by
the deadline established in section 1119(a)(2) of the ESEA.
(d) Policy. In implementing this section, a State must adopt a
policy that includes a requirement that LEAs in the State take
measurable steps to recruit, hire, train, and retain highly qualified
personnel to provide special education and related services under this
part to children with disabilities.
(e) Rule of construction. Notwithstanding any other individual right
of action that a parent or student may maintain under this part, nothing
in this part shall be construed to create a right of action on behalf of
an individual student or a class of students for the failure of a
particular SEA or LEA employee to be highly qualified, or to prevent a
parent from filing a complaint about staff qualifications with the SEA
as provided for under this part.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(14))
Sec. 300.157 Performance goals and indicators.
The State must--
(a) Have in effect established goals for the performance of children
with disabilities in the State that--
(1) Promote the purposes of this part, as stated in Sec. 300.1;
(2) Are the same as the State's objectives for progress by children
in its definition of adequate yearly progress, including the State's
objectives for progress by children with disabilities, under section
1111(b)(2)(C) of the ESEA, 20 U.S.C. 6311;
(3) Address graduation rates and dropout rates, as well as such
other factors as the State may determine; and
(4) Are consistent, to the extent appropriate, with any other goals
and academic standards for children established by the State;
(b) Have in effect established performance indicators the State will
use to assess progress toward achieving the goals described in paragraph
(a) of this section, including measurable annual objectives for progress
by children with disabilities under section 1111(b)(2)(C)(v)(II)(cc) of
the ESEA, 20 U.S.C. 6311; and
(c) Annually report to the Secretary and the public on the progress
of the State, and of children with disabilities in the State, toward
meeting the goals established under paragraph (a) of this section, which
may include elements of the reports required under section 1111(h) of
the ESEA.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(15))
[[Page 43]]
Secs. 300.158-300.159 [Reserved]
Sec. 300.160 Participation in assessments.
(a) General. A State must ensure that all children with disabilities
are included in all general State and district-wide assessment programs,
including assessments described under section 1111 of the ESEA, 20
U.S.C. 6311, with appropriate accommodations and alternate assessments,
if necessary, as indicated in their respective IEPs.
(b) Accommodation guidelines. (1) A State (or, in the case of a
district-wide assessment, an LEA) must develop guidelines for the
provision of appropriate accommodations.
(2) The State's (or, in the case of a district-wide assessment, the
LEA's) guidelines must--
(i) Identify only those accommodations for each assessment that do
not invalidate the score; and
(ii) Instruct IEP Teams to select, for each assessment, only those
accommodations that do not invalidate the score.
(c) Alternate assessments. (1) A State (or, in the case of a
district-wide assessment, an LEA) must develop and implement alternate
assessments and guidelines for the participation of children with
disabilities in alternate assessments for those children who cannot
participate in regular assessments, even with accommodations, as
indicated in their respective IEPs, as provided in paragraph (a) of this
section.
(2) For assessing the academic progress of students with
disabilities under Title I of the ESEA, the alternate assessments and
guidelines in paragraph (c)(1) of this section must provide for
alternate assessments that--
(i) Are aligned with the State's challenging academic content
standards and challenging student academic achievement standards;
(ii) If the State has adopted modified academic achievement
standards permitted in 34 CFR 200.1(e), measure the achievement of
children with disabilities meeting the State's criteria under
Sec. 200.1(e)(2) against those standards; and
(iii) If the State has adopted alternate academic achievement
standards permitted in 34 CFR 200.1(d), measure the achievement of
children with the most significant cognitive disabilities against those
standards.
(d) Explanation to IEP Teams. A State (or in the case of a district-
wide assessment, an LEA) must provide IEP Teams with a clear explanation
of the differences between assessments based on grade-level academic
achievement standards and those based on modified or alternate academic
achievement standards, including any effects of State or local policies
on the student's education resulting from taking an alternate assessment
based on alternate or modified academic achievement standards (such as
whether only satisfactory performance on a regular assessment would
qualify a student for a regular high school diploma).
(e) Inform parents. A State (or in the case of a district-wide
assessment, an LEA) must ensure that parents of students selected to be
assessed based on alternate or modified academic achievement standards
are informed that their child's achievement will be measured based on
alternate or modified academic achievement standards.
(f) Reports. An SEA (or, in the case of a district-wide assessment,
an LEA) must make available to the public, and report to the public with
the same frequency and in the same detail as it reports on the
assessment of nondisabled children, the following:
(1) The number of children with disabilities participating in
regular assessments, and the number of those children who were provided
accommodations (that did not result in an invalid score) in order to
participate in those assessments.
(2) The number of children with disabilities, if any, participating
in alternate assessments based on grade-level academic achievement
standards.
(3) The number of children with disabilities, if any, participating
in alternate assessments based on modified academic achievement
standards.
(4) The number of children with disabilities, if any, participating
in alternate assessments based on alternate academic achievement
standards.
(5) Compared with the achievement of all children, including
children with disabilities, the performance results of
[[Page 44]]
children with disabilities on regular assessments, alternate assessments
based on grade-level academic achievement standards, alternate
assessments based on modified academic achievement standards, and
alternate assessments based on alternate academic achievement standards
if--
(i) The number of children participating in those assessments is
sufficient to yield statistically reliable information; and
(ii) Reporting that information will not reveal personally
identifiable information about an individual student on those
assessments.
(g) Universal design. An SEA (or, in the case of a district-wide
assessment, an LEA) must, to the extent possible, use universal design
principles in developing and administering any assessments under this
section.
(Authority: 20 U.S.C. 1412(a)(16))
[72 FR 17781, Apr. 9, 2007]
Sec. 300.161 [Reserved]
Sec. 300.162 Supplementation of State, local, and other Federal funds.
(a) Expenditures. Funds paid to a State under this part must be
expended in accordance with all the provisions of this part.
(b) Prohibition against commingling. (1) Funds paid to a State under
this part must not be commingled with State funds.
(2) The requirement in paragraph (b)(1) of this section is satisfied
by the use of a separate accounting system that includes an audit trail
of the expenditure of funds paid to a State under this part. Separate
bank accounts are not required. (See 34 CFR 76.702 (Fiscal control and
fund accounting procedures).)
(c) State-level nonsupplanting. (1) Except as provided in
Sec. 300.203, funds paid to a State under Part B of the Act must be used
to supplement the level of Federal, State, and local funds (including
funds that are not under the direct control of the SEA or LEAs) expended
for special education and related services provided to children with
disabilities under Part B of the Act, and in no case to supplant those
Federal, State, and local funds.
(2) If the State provides clear and convincing evidence that all
children with disabilities have available to them FAPE, the Secretary
may waive, in whole or in part, the requirements of paragraph (c)(1) of
this section if the Secretary concurs with the evidence provided by the
State under Sec. 300.164.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(17))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.163 Maintenance of State financial support.
(a) General. A State must not reduce the amount of State financial
support for special education and related services for children with
disabilities, or otherwise made available because of the excess costs of
educating those children, below the amount of that support for the
preceding fiscal year.
(b) Reduction of funds for failure to maintain support. The
Secretary reduces the allocation of funds under section 611 of the Act
for any fiscal year following the fiscal year in which the State fails
to comply with the requirement of paragraph (a) of this section by the
same amount by which the State fails to meet the requirement.
(c) Waivers for exceptional or uncontrollable circumstances. The
Secretary may waive the requirement of paragraph (a) of this section for
a State, for one fiscal year at a time, if the Secretary determines
that--
(1) Granting a waiver would be equitable due to exceptional or
uncontrollable circumstances such as a natural disaster or a precipitous
and unforeseen decline in the financial resources of the State; or
(2) The State meets the standard in Sec. 300.164 for a waiver of the
requirement to supplement, and not to supplant, funds received under
Part B of the Act.
(d) Subsequent years. If, for any fiscal year, a State fails to meet
the requirement of paragraph (a) of this section, including any year for
which the State is granted a waiver under paragraph (c) of this section,
the financial support required of the State in future years under
paragraph (a) of this section shall be the amount that would have
[[Page 45]]
been required in the absence of that failure and not the reduced level
of the State's support.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(18))
Sec. 300.164 Waiver of requirement regarding supplementing and not
supplanting with Part B funds.
(a) Except as provided under Secs. 300.202 through 300.205, funds
paid to a State under Part B of the Act must be used to supplement and
increase the level of Federal, State, and local funds (including funds
that are not under the direct control of SEAs or LEAs) expended for
special education and related services provided to children with
disabilities under Part B of the Act and in no case to supplant those
Federal, State, and local funds. A State may use funds it retains under
Sec. 300.704(a) and (b) without regard to the prohibition on supplanting
other funds.
(b) If a State provides clear and convincing evidence that all
eligible children with disabilities throughout the State have FAPE
available to them, the Secretary may waive for a period of one year in
whole or in part the requirement under Sec. 300.162 (regarding State-
level nonsupplanting) if the Secretary concurs with the evidence
provided by the State.
(c) If a State wishes to request a waiver under this section, it
must submit to the Secretary a written request that includes--
(1) An assurance that FAPE is currently available, and will remain
available throughout the period that a waiver would be in effect, to all
eligible children with disabilities throughout the State, regardless of
the public agency that is responsible for providing FAPE to them. The
assurance must be signed by an official who has the authority to provide
that assurance as it applies to all eligible children with disabilities
in the State;
(2) All evidence that the State wishes the Secretary to consider in
determining whether all eligible children with disabilities have FAPE
available to them, setting forth in detail--
(i) The basis on which the State has concluded that FAPE is
available to all eligible children in the State; and
(ii) The procedures that the State will implement to ensure that
FAPE remains available to all eligible children in the State, which must
include--
(A) The State's procedures under Sec. 300.111 for ensuring that all
eligible children are identified, located and evaluated;
(B) The State's procedures for monitoring public agencies to ensure
that they comply with all requirements of this part;
(C) The State's complaint procedures under Secs. 300.151 through
300.153; and
(D) The State's hearing procedures under Secs. 300.511 through
300.516 and Secs. 300.530 through 300.536;
(3) A summary of all State and Federal monitoring reports, and State
complaint decisions (see Secs. 300.151 through 300.153) and hearing
decisions (see Secs. 300.511 through 300.516 and Secs. 300.530 through
300.536), issued within three years prior to the date of the State's
request for a waiver under this section, that includes any finding that
FAPE has not been available to one or more eligible children, and
evidence that FAPE is now available to all children addressed in those
reports or decisions; and
(4) Evidence that the State, in determining that FAPE is currently
available to all eligible children with disabilities in the State, has
consulted with the State advisory panel under Sec. 300.167.
(d) If the Secretary determines that the request and supporting
evidence submitted by the State makes a prima facie showing that FAPE
is, and will remain, available to all eligible children with
disabilities in the State, the Secretary, after notice to the public
throughout the State, conducts a public hearing at which all interested
persons and organizations may present evidence regarding the following
issues:
(1) Whether FAPE is currently available to all eligible children
with disabilities in the State.
(2) Whether the State will be able to ensure that FAPE remains
available to all eligible children with disabilities in the State if the
Secretary provides the requested waiver.
[[Page 46]]
(e) Following the hearing, the Secretary, based on all submitted
evidence, will provide a waiver, in whole or in part, for a period of
one year if the Secretary finds that the State has provided clear and
convincing evidence that FAPE is currently available to all eligible
children with disabilities in the State, and the State will be able to
ensure that FAPE remains available to all eligible children with
disabilities in the State if the Secretary provides the requested
waiver.
(f) A State may receive a waiver of the requirement of section
612(a)(18)(A) of the Act and Sec. 300.164 if it satisfies the
requirements of paragraphs (b) through (e) of this section.
(g) The Secretary may grant subsequent waivers for a period of one
year each, if the Secretary determines that the State has provided clear
and convincing evidence that all eligible children with disabilities
throughout the State have, and will continue to have throughout the one-
year period of the waiver, FAPE available to them.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(17)(C), (18)(C)(ii))
Sec. 300.165 Public participation.
(a) Prior to the adoption of any policies and procedures needed to
comply with Part B of the Act (including any amendments to those
policies and procedures), the State must ensure that there are public
hearings, adequate notice of the hearings, and an opportunity for
comment available to the general public, including individuals with
disabilities and parents of children with disabilities.
(b) Before submitting a State plan under this part, a State must
comply with the public participation requirements in paragraph (a) of
this section and those in 20 U.S.C. 1232d(b)(7).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(19); 20 U.S.C. 1232d(b)(7))
Sec. 300.166 Rule of construction.
In complying with Secs. 300.162 and 300.163, a State may not use
funds paid to it under this part to satisfy State-law mandated funding
obligations to LEAs, including funding based on student attendance or
enrollment, or inflation.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(20))
State Advisory Panel
Sec. 300.167 State advisory panel.
The State must establish and maintain an advisory panel for the
purpose of providing policy guidance with respect to special education
and related services for children with disabilities in the State.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(A))
Sec. 300.168 Membership.
(a) General. The advisory panel must consist of members appointed by
the Governor, or any other official authorized under State law to make
such appointments, be representative of the State population and be
composed of individuals involved in, or concerned with the education of
children with disabilities, including--
(1) Parents of children with disabilities (ages birth through 26);
(2) Individuals with disabilities;
(3) Teachers;
(4) Representatives of institutions of higher education that prepare
special education and related services personnel;
(5) State and local education officials, including officials who
carry out activities under subtitle B of title VII of the McKinney-Vento
Homeless Assistance Act, (42 U.S.C. 11431 et seq.);
(6) Administrators of programs for children with disabilities;
(7) Representatives of other State agencies involved in the
financing or delivery of related services to children with disabilities;
(8) Representatives of private schools and public charter schools;
(9) Not less than one representative of a vocational, community, or
business organization concerned with the provision of transition
services to children with disabilities;
[[Page 47]]
(10) A representative from the State child welfare agency
responsible for foster care; and
(11) Representatives from the State juvenile and adult corrections
agencies.
(b) Special rule. A majority of the members of the panel must be
individuals with disabilities or parents of children with disabilities
(ages birth through 26).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(B) and (C))
Sec. 300.169 Duties.
The advisory panel must--
(a) Advise the SEA of unmet needs within the State in the education
of children with disabilities;
(b) Comment publicly on any rules or regulations proposed by the
State regarding the education of children with disabilities;
(c) Advise the SEA in developing evaluations and reporting on data
to the Secretary under section 618 of the Act;
(d) Advise the SEA in developing corrective action plans to address
findings identified in Federal monitoring reports under Part B of the
Act; and
(e) Advise the SEA in developing and implementing policies relating
to the coordination of services for children with disabilities.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(21)(D))
Other Provisions Required for State Eligibility
Sec. 300.170 Suspension and expulsion rates.
(a) General. The SEA must examine data, including data disaggregated
by race and ethnicity, to determine if significant discrepancies are
occurring in the rate of long-term suspensions and expulsions of
children with disabilities--
(1) Among LEAs in the State; or
(2) Compared to the rates for nondisabled children within those
agencies.
(b) Review and revision of policies. If the discrepancies described
in paragraph (a) of this section are occurring, the SEA must review and,
if appropriate, revise (or require the affected State agency or LEA to
revise) its policies, procedures, and practices relating to the
development and implementation of IEPs, the use of positive behavioral
interventions and supports, and procedural safeguards, to ensure that
these policies, procedures, and practices comply with the Act.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(22))
Sec. 300.171 Annual description of use of Part B funds.
(a) In order to receive a grant in any fiscal year a State must
annually describe--
(1) How amounts retained for State administration and State-level
activities under Sec. 300.704 will be used to meet the requirements of
this part; and
(2) How those amounts will be allocated among the activities
described in Sec. 300.704 to meet State priorities based on input from
LEAs.
(b) If a State's plans for use of its funds under Sec. 300.704 for
the forthcoming year do not change from the prior year, the State may
submit a letter to that effect to meet the requirement in paragraph (a)
of this section.
(c) The provisions of this section do not apply to the Virgin
Islands, Guam, American Samoa, the Commonwealth of the Northern Mariana
Islands, and the freely associated States.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1411(e)(5))
Sec. 300.172 Access to instructional materials.
(a) General. The State must--
(1) Adopt the National Instructional Materials Accessibility
Standard (NIMAS), published as appendix C to part 300, for the purposes
of providing instructional materials to blind persons or other persons
with print disabilities, in a timely manner after publication of the
NIMAS in the Federal Register on July 19, 2006 (71 FR 41084); and
[[Page 48]]
(2) Establish a State definition of ``timely manner'' for purposes
of paragraphs (b)(2) and (b)(3) of this section if the State is not
coordinating with the National Instructional Materials Access Center
(NIMAC) or (b)(3) and (c)(2) of this section if the State is
coordinating with the NIMAC.
(b) Rights and responsibilities of SEA. (1) Nothing in this section
shall be construed to require any SEA to coordinate with the NIMAC.
(2) If an SEA chooses not to coordinate with the NIMAC, the SEA must
provide an assurance to the Secretary that it will provide instructional
materials to blind persons or other persons with print disabilities in a
timely manner.
(3) Nothing in this section relieves an SEA of its responsibility to
ensure that children with disabilities who need instructional materials
in accessible formats, but are not included under the definition of
blind or other persons with print disabilities in Sec. 300.172(e)(1)(i)
or who need materials that cannot be produced from NIMAS files, receive
those instructional materials in a timely manner.
(4) In order to meet its responsibility under paragraphs (b)(2),
(b)(3), and (c) of this section to ensure that children with
disabilities who need instructional materials in accessible formats are
provided those materials in a timely manner, the SEA must ensure that
all public agencies take all reasonable steps to provide instructional
materials in accessible formats to children with disabilities who need
those instructional materials at the same time as other children receive
instructional materials.
(c) Preparation and delivery of files. If an SEA chooses to
coordinate with the NIMAC, as of December 3, 2006, the SEA must--
(1) As part of any print instructional materials adoption process,
procurement contract, or other practice or instrument used for purchase
of print instructional materials, enter into a written contract with the
publisher of the print instructional materials to--
(i) Require the publisher to prepare and, on or before delivery of
the print instructional materials, provide to NIMAC electronic files
containing the contents of the print instructional materials using the
NIMAS; or
(ii) Purchase instructional materials from the publisher that are
produced in, or may be rendered in, specialized formats.
(2) Provide instructional materials to blind persons or other
persons with print disabilities in a timely manner.
(d) Assistive technology. In carrying out this section, the SEA, to
the maximum extent possible, must work collaboratively with the State
agency responsible for assistive technology programs.
(e) Definitions. (1) In this section and Sec. 300.210--
(i) Blind persons or other persons with print disabilities means
children served under this part who may qualify to receive books and
other publications produced in specialized formats in accordance with
the Act entitled ``An Act to provide books for adult blind,'' approved
March 3, 1931, 2 U.S.C. 135a;
(ii) National Instructional Materials Access Center or NIMAC means
the center established pursuant to section 674(e) of the Act;
(iii) National Instructional Materials Accessibility Standard or
NIMAS has the meaning given the term in section 674(e)(3)(B) of the Act;
(iv) Specialized formats has the meaning given the term in section
674(e)(3)(D) of the Act.
(2) The definitions in paragraph (e)(1) of this section apply to
each State and LEA, whether or not the State or LEA chooses to
coordinate with the NIMAC.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(23), 1474(e))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.173 Overidentification and disproportionality.
The State must have in effect, consistent with the purposes of this
part and with section 618(d) of the Act, policies and procedures
designed to prevent the inappropriate overidentification or
disproportionate representation by
[[Page 49]]
race and ethnicity of children as children with disabilities, including
children with disabilities with a particular impairment described in
Sec. 300.8.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(24))
Sec. 300.174 Prohibition on mandatory medication.
(a) General. The SEA must prohibit State and LEA personnel from
requiring parents to obtain a prescription for substances identified
under schedules I, II, III, IV, or V in section 202(c) of the Controlled
Substances Act (21 U.S.C. 812(c)) for a child as a condition of
attending school, receiving an evaluation under Secs. 300.300 through
300.311, or receiving services under this part.
(b) Rule of construction. Nothing in paragraph (a) of this section
shall be construed to create a Federal prohibition against teachers and
other school personnel consulting or sharing classroom-based
observations with parents or guardians regarding a student's academic
and functional performance, or behavior in the classroom or school, or
regarding the need for evaluation for special education or related
services under Sec. 300.111 (related to child find).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(a)(25))
Sec. 300.175 SEA as provider of FAPE or direct services.
If the SEA provides FAPE to children with disabilities, or provides
direct services to these children, the agency--
(a) Must comply with any additional requirements of Secs. 300.201
and 300.202 and Secs. 300.206 through 300.226 as if the agency were an
LEA; and
(b) May use amounts that are otherwise available to the agency under
Part B of the Act to serve those children without regard to
Sec. 300.202(b) (relating to excess costs).
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(b))
Sec. 300.176 Exception for prior State plans.
(a) General. If a State has on file with the Secretary policies and
procedures approved by the Secretary that demonstrate that the State
meets any requirement of Sec. 300.100, including any policies and
procedures filed under Part B of the Act as in effect before, December
3, 2004, the Secretary considers the State to have met the requirement
for purposes of receiving a grant under Part B of the Act.
(b) Modifications made by a State. (1) Subject to paragraph (b)(2)
of this section, policies and procedures submitted by a State in
accordance with this subpart remain in effect until the State submits to
the Secretary the modifications that the State determines necessary.
(2) The provisions of this subpart apply to a modification to an
application to the same extent and in the same manner that they apply to
the original plan.
(c) Modifications required by the Secretary. The Secretary may
require a State to modify its policies and procedures, but only to the
extent necessary to ensure the State's compliance with this part, if--
(1) After December 3, 2004, the provisions of the Act or the
regulations in this part are amended;
(2) There is a new interpretation of this Act by a Federal court or
a State's highest court; or
(3) There is an official finding of noncompliance with Federal law
or regulations.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(c)(2) and (3))
Sec. 300.177 States' sovereign immunity and positive efforts to employ
and advance qualified individuals with disabilities.
(a) States' sovereign immunity. (1) A State that accepts funds under
this part waives its immunity under the 11th amendment of the
Constitution of the United States from suit in Federal court for a
violation of this part.
(2) In a suit against a State for a violation of this part, remedies
(including remedies both at law and in equity) are
[[Page 50]]
available for such a violation in the suit against any public entity
other than a State.
(3) Paragraphs (a)(1) and (a)(2) of this section apply with respect
to violations that occur in whole or part after the date of enactment of
the Education of the Handicapped Act Amendments of 1990.
(b) Positive efforts to employ and advance qualified individuals
with disabilities. Each recipient of assistance under Part B of the Act
must make positive efforts to employ, and advance in employment,
qualified individuals with disabilities in programs assisted under Part
B of the Act.
(Authority: 20 U.S.C. 1403, 1405)
[73 FR 73027, Dec. 1, 2008]
Department Procedures
Sec. 300.178 Determination by the Secretary that a State is eligible to
receive a grant.
If the Secretary determines that a State is eligible to receive a
grant under Part B of the Act, the Secretary notifies the State of that
determination.
(Authority: 20 U.S.C. 1412(d)(1))
Sec. 300.179 Notice and hearing before determining that a State is not
eligible to receive a grant.
(a) General. (1) The Secretary does not make a final determination
that a State is not eligible to receive a grant under Part B of the Act
until providing the State--
(i) With reasonable notice; and
(ii) With an opportunity for a hearing.
(2) In implementing paragraph (a)(1)(i) of this section, the
Secretary sends a written notice to the SEA by certified mail with
return receipt requested.
(b) Content of notice. In the written notice described in paragraph
(a)(2) of this section, the Secretary--
(1) States the basis on which the Secretary proposes to make a final
determination that the State is not eligible;
(2) May describe possible options for resolving the issues;
(3) Advises the SEA that it may request a hearing and that the
request for a hearing must be made not later than 30 days after it
receives the notice of the proposed final determination that the State
is not eligible; and
(4) Provides the SEA with information about the hearing procedures
that will be followed.
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.180 Hearing official or panel.
(a) If the SEA requests a hearing, the Secretary designates one or
more individuals, either from the Department or elsewhere, not
responsible for or connected with the administration of this program, to
conduct a hearing.
(b) If more than one individual is designated, the Secretary
designates one of those individuals as the Chief Hearing Official of the
Hearing Panel. If one individual is designated, that individual is the
Hearing Official.
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.181 Hearing procedures.
(a) As used in Secs. 300.179 through 300.184 the term party or
parties means the following:
(1) An SEA that requests a hearing regarding the proposed
disapproval of the State's eligibility under this part.
(2) The Department official who administers the program of financial
assistance under this part.
(3) A person, group or agency with an interest in and having
relevant information about the case that has applied for and been
granted leave to intervene by the Hearing Official or Hearing Panel.
(b) Within 15 days after receiving a request for a hearing, the
Secretary designates a Hearing Official or Hearing Panel and notifies
the parties.
(c) The Hearing Official or Hearing Panel may regulate the course of
proceedings and the conduct of the parties during the proceedings. The
Hearing Official or Hearing 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 Hearing 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.
[[Page 51]]
(2) The Hearing Official or Hearing Panel may schedule a prehearing
conference with the Hearing Official or Hearing Panel and the parties.
(3) Any party may request the Hearing Official or Hearing Panel to
schedule a prehearing or other conference. The Hearing Official or
Hearing Panel decides whether a conference is necessary and notifies all
parties.
(4) At a prehearing or other conference, the Hearing Official or
Hearing 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 Hearing 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 Hearing Panel.
(5) A prehearing or other conference held under paragraph (c)(4) of
this section may be conducted by telephone conference call.
(6) At a prehearing or other conference, the parties must 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 Hearing 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 Hearing Panel may require parties to
state their positions and to provide all or part of the evidence in
writing.
(e) The Hearing Official or Hearing Panel may require parties to
present testimony through affidavits and to conduct cross-examination
through interrogatories.
(f) The Hearing Official or Hearing 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 Hearing Panel may receive, rule on,
exclude, or limit evidence at any stage of the proceedings.
(h) The Hearing Official or Hearing Panel may rule on motions and
other issues at any stage of the proceedings.
(i) The Hearing Official or Hearing Panel may examine witnesses.
(j) The Hearing Official or Hearing Panel may set reasonable time
limits for submission of written documents.
(k) The Hearing Official or Hearing 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 Hearing Panel may interpret applicable
statutes and regulations but may not waive them or rule on their
validity.
(m)(1) The parties must present their positions through briefs and
the submission of other documents and may request an oral argument or
evidentiary hearing. The Hearing Official or Hearing Panel shall
determine whether an oral argument or an evidentiary hearing is needed
to clarify the positions of the parties.
(2) The Hearing Official or Hearing Panel gives each party an
opportunity to be represented by counsel.
(n) If the Hearing Official or Hearing Panel determines that an
evidentiary hearing would materially assist the resolution of the
matter, the Hearing Official or Hearing 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 Hearing Panel accepts any evidence that
it finds is relevant and material to the proceedings and is not unduly
repetitious.
[[Page 52]]
(p)(1) The Hearing Official or Hearing 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 must file with the Hearing Official or Hearing Panel
all written motions, briefs, and other documents and must at the same
time provide a copy to the other parties to the proceedings.
(Authority: 20 U.S.C. 1412(d)(2))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61306, Oct. 30, 2007]
Sec. 300.182 Initial decision; final decision.
(a) The Hearing Official or Hearing Panel prepares an initial
written decision that addresses each of the points in the notice sent by
the Secretary to the SEA under Sec. 300.179 including any amendments to
or further clarifications of the issues, under Sec. 300.181(c)(7).
(b) The initial decision of a Hearing Panel is made by a majority of
Panel members.
(c) The Hearing Official or Hearing 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 Hearing Panel within 15 days of
the date the party receives the Panel's decision.
(e) The Hearing Official or Hearing 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 Hearing Panel
within seven days of the date the party receives the initial comments
and recommendations.
(f) The Hearing Official or Hearing 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 Hearing Panel
becomes the final decision of the Secretary unless, within 25 days after
the end of the time for receipt of written comments and recommendations,
the Secretary informs the Hearing Official or Hearing Panel and the
parties to a hearing in writing that the decision is being further
reviewed for possible modification.
(h) The Secretary rejects or modifies the initial decision of the
Hearing Official or Hearing 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 transcript of the Hearing Official's or Hearing
Panel's proceedings, and written comments.
(j) The Secretary may remand the matter to the Hearing Official or
Hearing Panel for further proceedings.
(k) Unless the Secretary remands the matter as provided in paragraph
(j) of this section, the Secretary issues the final decision, with any
necessary modifications, within 30 days after notifying the Hearing
Official or Hearing Panel that the initial decision is being further
reviewed.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1412(d)(2))
Sec. 300.183 Filing requirements.
(a) Any written submission by a party under Secs. 300.179 through
300.184 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
[[Page 53]]
document was received by the Department.
(d) If a document is filed by facsimile transmission, the Secretary,
the Hearing Official, or the Hearing 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. 1412(d))
Sec. 300.184 Judicial review.
If a State is dissatisfied with the Secretary's final decision with
respect to the eligibility of the State under section 612 of the Act,
the State may, not later than 60 days after notice of that decision,
file with the United States Court of Appeals for the circuit in which
that State is located a petition for review of that decision. A copy of
the petition must be transmitted by the clerk of the court to the
Secretary. The Secretary then files in the court the record of the
proceedings upon which the Secretary's decision was based, as provided
in 28 U.S.C. 2112.
(Authority: 20 U.S.C. 1416(e)(8))
Sec. 300.185 [Reserved]
Sec. 300.186 Assistance under other Federal programs.
Part B of the Act may not be construed to permit a State to reduce
medical and other assistance available, or to alter eligibility, under
titles V and XIX of the Social Security Act with respect to the
provision of FAPE for children with disabilities in the State.
(Authority: 20 U.S.C. 1412(e))
By-pass for Children in Private Schools
Sec. 300.190 By-pass--general.
(a) If, on December 2, 1983, the date of enactment of the Education
of the Handicapped Act Amendments of 1983, an SEA was prohibited by law
from providing for the equitable participation in special programs of
children with disabilities enrolled in private elementary schools and
secondary schools as required by section 612(a)(10)(A) of the Act, or if
the Secretary determines that an SEA, LEA, or other public agency has
substantially failed or is unwilling to provide for such equitable
participation then the Secretary shall, notwithstanding such provision
of law, arrange for the provision of services to these children through
arrangements which shall be subject to the requirements of section
612(a)(10)(A) of the Act.
(b) The Secretary waives the requirement of section 612(a)(10)(A) of
the Act and of Secs. 300.131 through 300.144 if the Secretary implements
a by-pass.
(Authority: 20 U.S.C. 1412(f)(1))
Sec. 300.191 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, and as appropriate, LEA or other
public agency officials to consider matters such as--
(1) Any prohibition imposed by State law that results in the need
for a by-pass; and
(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.
(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, LEA or other public agency in a manner
consistent with the requirements of section 612(a)(10)(A) of the Act and
Secs. 300.131 through 300.144 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 determined by dividing the total amount
received by the State under Part B of the Act for the fiscal year by the
number of children with disabilities served in the prior year as
reported to the Secretary under section 618 of the Act; by
[[Page 54]]
(2) The number of private school children with disabilities (as
defined in Secs. 300.8(a) and 300.130) in the State, LEA or other public
agency, as determined by the Secretary on the basis of the most recent
satisfactory data available, which may include an estimate of the number
of those children with disabilities.
(d) The Secretary deducts from the State's allocation under Part B
of the Act the amount the Secretary determines is necessary to implement
a by-pass and pays that amount to the provider of services. The
Secretary may withhold this amount from the State's allocation pending
final resolution of any investigation or complaint that could result in
a determination that a by-pass must be implemented.
(Authority: 20 U.S.C. 1412(f)(2))
Sec. 300.192 Notice of intent to implement a by-pass.
(a) Before taking any final action to implement a by-pass, the
Secretary provides the SEA and, as appropriate, LEA or other public
agency 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 and, as appropriate, LEA or other public agency to
respond; and
(2) Advises the SEA and, as appropriate, LEA or other public agency
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 and, as appropriate,
LEA or other public agency by certified mail with return receipt
requested.
(Authority: 20 U.S.C. 1412(f)(3)(A))
Sec. 300.193 Request to show cause.
An SEA, LEA or other public agency in receipt of a notice under
Sec. 300.192 that seeks an opportunity to show cause why a by-pass
should not be implemented must submit a written request for a show cause
hearing to the Secretary, within the specified time period in the
written notice in Sec. 300.192(b)(2).
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.194 Show cause hearing.
(a) If a show cause hearing is requested, the Secretary--
(1) Notifies the SEA and affected LEA or other public agency, and
other appropriate public and private school officials of the time and
place for the hearing;
(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; and
(3) Notifies the SEA, LEA or other public agency, and
representatives of private schools that they may be represented by legal
counsel and submit oral or written evidence and arguments at the
hearing.
(b) At the show cause hearing, the designee considers matters such
as--
(1) The necessity for implementing a by-pass;
(2) Possible factual errors in the written notice of intent to
implement a by-pass; and
(3) The objections raised by public and private school
representatives.
(c) The designee may regulate the course of the proceedings and the
conduct of parties during the pendency of the proceedings. The designee
takes all steps necessary to conduct a fair and impartial proceeding, to
avoid delay, and to maintain order.
(d) The designee has no authority to require or conduct discovery.
(e) The designee may interpret applicable statutes and regulations,
but may not waive them or rule on their validity.
(f) The designee arranges for the preparation, retention, and, if
appropriate, dissemination of the record of the hearing.
(g) Within 10 days after the hearing, the designee--
(1) Indicates that a decision will be issued on the basis of the
existing record; or
[[Page 55]]
(2) Requests further information from the SEA, LEA, other public
agency, representatives of private schools or Department officials.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.195 Decision.
(a) The designee who conducts the show cause hearing--
(1) Within 120 days after the record of a show cause hearing is
closed, 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 30 days of the date the
party receives the designee's decision.
(c) The Secretary adopts, reverses, or modifies the designee's
decision and notifies all parties to the show cause hearing of the
Secretary's final action. That notice is sent by certified mail with
return receipt requested.
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.196 Filing requirements.
(a) Any written submission under Sec. 300.194 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.
(f) A party must show a proof of mailing to establish the filing
date under paragraph (b)(2) of this section as provided in 34 CFR
75.102(d).
(Authority: 20 U.S.C. 1412(f)(3))
Sec. 300.197 Judicial review.
If dissatisfied with the Secretary's final action, the SEA may,
within 60 days after notice of that action, file a petition for review
with the United States Court of Appeals for the circuit in which the
State is located. The procedures for judicial review are described in
section 612(f)(3) (B) through (D) of the Act.
(Authority: 20 U.S.C. 1412(f)(3)(B)-(D))
Sec. 300.198 Continuation of a by-pass.
The Secretary continues a by-pass until the Secretary determines
that the SEA, LEA or other public agency will meet the requirements for
providing services to private school children.
(Authority: 20 U.S.C. 1412(f)(2)(C))
State Administration
Sec. 300.199 State administration.
(a) Rulemaking. Each State that receives funds under Part B of the
Act must--
(1) Ensure that any State rules, regulations, and policies relating
to this part conform to the purposes of this part;
(2) Identify in writing to LEAs located in the State and the
Secretary any such rule, regulation, or policy as a State-imposed
requirement that is not required by Part B of the Act and Federal
regulations; and
(3) Minimize the number of rules, regulations, and policies to which
the LEAs and schools located in the State are subject under Part B of
the Act.
(b) Support and facilitation. State rules, regulations, and policies
under Part B of the Act must support and facilitate LEA and school-level
system
[[Page 56]]
improvement designed to enable children with disabilities to meet the
challenging State student academic achievement standards.
(Approved by the Office of Management and Budget under control number
1820-0030)
(Authority: 20 U.S.C. 1407)
Subpart C_Local Educational Agency Eligibility
Sec. 300.200 Condition of assistance.
An LEA is eligible for assistance under Part B of the Act for a
fiscal year if the agency submits a plan that provides assurances to the
SEA that the LEA meets each of the conditions in Secs. 300.201 through
300.213.
(Authority: 20 U.S.C. 1413(a))
Sec. 300.201 Consistency with State policies.
The LEA, in providing for the education of children with
disabilities within its jurisdiction, must have in effect policies,
procedures, and programs that are consistent with the State policies and
procedures established under Secs. 300.101 through 300.163, and
Secs. 300.165 through 300.174.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(1))
Sec. 300.202 Use of amounts.
(a) General. Amounts provided to the LEA under Part B of the Act--
(1) Must be expended in accordance with the applicable provisions of
this part;
(2) Must be used only to pay the excess costs of providing special
education and related services to children with disabilities, consistent
with paragraph (b) of this section; and
(3) Must be used to supplement State, local, and other Federal funds
and not to supplant those funds.
(b) Excess cost requirement--(1) General. (i) 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)(1)(ii)
of this section.
(ii) The excess cost requirement does not prevent an LEA from using
Part B funds to pay for all of the costs directly attributable to the
education of a child with a disability in any of the ages 3, 4, 5, 18,
19, 20, or 21, if no local or State funds are available for nondisabled
children of these ages. However, the LEA must comply with the
nonsupplanting and other requirements of this part in providing the
education and services for these children.
(2)(i) An LEA meets the excess cost requirement if it has spent at
least a minimum average amount for the education of its children with
disabilities before funds under Part B of the Act are used.
(ii) The amount described in paragraph (b)(2)(i) of this section is
determined in accordance with the definition of excess costs in
Sec. 300.16. That amount may not include capital outlay or debt service.
(3) If two or more LEAs jointly establish eligibility in accordance
with Sec. 300.223, the minimum average amount is the average of the
combined minimum average amounts determined in accordance with the
definition of excess costs in Sec. 300.16 in those agencies for
elementary or secondary school students, as the case may be.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(A))
Sec. 300.203 Maintenance of effort.
(a) Eligibility standard. (1) For purposes of establishing the LEA's
eligibility for an award for a fiscal year, the SEA must determine that
the LEA budgets, for the education of children with disabilities, at
least the same amount, from at least one of the following sources, as
the LEA spent for that purpose from the same source for the most recent
fiscal year for which information is available:
(i) Local funds only;
(ii) The combination of State and local funds;
(iii) Local funds only on a per capita basis; or
(iv) The combination of State and local funds on a per capita basis.
(2) When determining the amount of funds that the LEA must budget to
[[Page 57]]
meet the requirement in paragraph (a)(1) of this section, the LEA may
take into consideration, to the extent the information is available, the
exceptions and adjustment provided in Secs. 300.204 and 300.205 that the
LEA:
(i) Took in the intervening year or years between the most recent
fiscal year for which information is available and the fiscal year for
which the LEA is budgeting; and
(ii) Reasonably expects to take in the fiscal year for which the LEA
is budgeting.
(3) Expenditures made from funds provided by the Federal government
for which the SEA is required to account to the Federal government or
for which the LEA is required to account to the Federal government
directly or through the SEA may not be considered in determining whether
an LEA meets the standard in paragraph (a)(1) of this section.
(b) Compliance standard. (1) Except as provided in Secs. 300.204 and
300.205, funds provided to an LEA under Part B of the Act must not be
used to reduce the level of expenditures for the education of children
with disabilities made by the LEA from local funds below the level of
those expenditures for the preceding fiscal year.
(2) An LEA meets this standard if it does not reduce the level of
expenditures for the education of children with disabilities made by the
LEA from at least one of the following sources below the level of those
expenditures from the same source for the preceding fiscal year, except
as provided in Secs. 300.204 and 300.205:
(i) Local funds only;
(ii) The combination of State and local funds;
(iii) Local funds only on a per capita basis; or
(iv) The combination of State and local funds on a per capita basis.
(3) Expenditures made from funds provided by the Federal government
for which the SEA is required to account to the Federal government or
for which the LEA is required to account to the Federal government
directly or through the SEA may not be considered in determining whether
an LEA meets the standard in paragraphs (b)(1) and (2) of this section.
(c) Subsequent years. (1) If, in the fiscal year beginning on July
1, 2013 or July 1, 2014, an LEA fails to meet the requirements of
Sec. 300.203 in effect at that time, the level of expenditures required
of the LEA for the fiscal year subsequent to the year of the failure is
the amount that would have been required in the absence of that failure,
not the LEA's reduced level of expenditures.
(2) If, in any fiscal year beginning on or after July 1, 2015, an
LEA fails to meet the requirement of paragraph (b)(2)(i) or (iii) of
this section and the LEA is relying on local funds only, or local funds
only on a per capita basis, to meet the requirements of paragraph (a) or
(b) of this section, the level of expenditures required of the LEA for
the fiscal year subsequent to the year of the failure is the amount that
would have been required under paragraph (b)(2)(i) or (iii) in the
absence of that failure, not the LEA's reduced level of expenditures.
(3) If, in any fiscal year beginning on or after July 1, 2015, an
LEA fails to meet the requirement of paragraph (b)(2)(ii) or (iv) of
this section and the LEA is relying on the combination of State and
local funds, or the combination of State and local funds on a per capita
basis, to meet the requirements of paragraph (a) or (b) of this section,
the level of expenditures required of the LEA for the fiscal year
subsequent to the year of the failure is the amount that would have been
required under paragraph (b)(2)(ii) or (iv) in the absence of that
failure, not the LEA's reduced level of expenditures.
(d) Consequence of failure to maintain effort. If an LEA fails to
maintain its level of expenditures for the education of children with
disabilities in accordance with paragraph (b) of this section, the SEA
is liable in a recovery action under section 452 of the General
Education Provisions Act (20 U.S.C. 1234a) to return to the Department,
using non-Federal funds, an amount equal to the amount by which the LEA
failed to maintain its level of expenditures in accordance with
paragraph (b) of this section in that fiscal year, or the amount of the
LEA's Part B subgrant in that fiscal year, whichever is lower. (Approved
by the Office of Management
[[Page 58]]
and Budget under control number 1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(A), Pub. L. 113-76, 128 Stat. 5, 394
(2014), Pub. L. 113-235, 128 Stat. 2130, 2499 (2014))
[80 FR 23666, Apr. 28, 2015]
Sec. 300.204 Exception to maintenance of effort.
Notwithstanding the restriction in Sec. 300.203(b), an LEA may
reduce the level of expenditures by the LEA under Part B of the Act
below the level of those expenditures for the preceding fiscal year if
the reduction is attributable to any of the following:
(a) The voluntary departure, by retirement or otherwise, or
departure for just cause, of special education or related services
personnel.
(b) A decrease in the enrollment of children with disabilities.
(c) The termination of the obligation of the agency, consistent with
this part, to provide a program of special education to a particular
child with a disability that is an exceptionally costly program, as
determined by the SEA, because the child--
(1) Has left the jurisdiction of the agency;
(2) Has reached the age at which the obligation of the agency to
provide FAPE to the child has terminated; or
(3) No longer needs the program of special education.
(d) The termination of costly expenditures for long-term purchases,
such as the acquisition of equipment or the construction of school
facilities.
(e) The assumption of cost by the high cost fund operated by the SEA
under Sec. 300.704(c).
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(B))
[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]
Sec. 300.205 Adjustment to local fiscal efforts in certain fiscal years.
(a) Amounts in excess. Notwithstanding Sec. 300.202(a)(2) and (b)
and Sec. 300.203(b), and except as provided in paragraph (d) of this
section and Sec. 300.230(e)(2), for any fiscal year for which the
allocation received by an LEA under Sec. 300.705 exceeds the amount the
LEA received for the previous fiscal year, the LEA may reduce the level
of expenditures otherwise required by Sec. 300.203(b) by not more than
50 percent of the amount of that excess.
(b) Use of amounts to carry out activities under ESEA. If an LEA
exercises the authority under paragraph (a) of this section, the LEA
must use an amount of local funds equal to the reduction in expenditures
under paragraph (a) of this section to carry out activities that could
be supported with funds under the ESEA regardless of whether the LEA is
using funds under the ESEA for those activities.
(c) State prohibition. Notwithstanding paragraph (a) of this
section, if an SEA determines that an LEA is unable to establish and
maintain programs of FAPE that meet the requirements of section 613(a)
of the Act and this part or the SEA has taken action against the LEA
under section 616 of the Act and subpart F of these regulations, the SEA
must prohibit the LEA from reducing the level of expenditures under
paragraph (a) of this section for that fiscal year.
(d) Special rule. The amount of funds expended by an LEA for early
intervening services under Sec. 300.226 shall count toward the maximum
amount of expenditures that the LEA may reduce under paragraph (a) of
this section.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(C))
[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]
Sec. 300.206 Schoolwide programs under title I of the ESEA.
(a) General. Notwithstanding the provisions of Secs. 300.202 and
300.203 or any other provision of Part B of the Act, an LEA may use
funds received under Part B of the Act for any fiscal year to carry out
a schoolwide program under section 1114 of the ESEA, except that the
amount used in any schoolwide program may not exceed--
(1)(i) The amount received by the LEA under Part B of the Act for
that fiscal year; divided by
(ii) The number of children with disabilities in the jurisdiction of
the LEA; and multiplied by
[[Page 59]]
(2) The number of children with disabilities participating in the
schoolwide program.
(b) Funding conditions. The funds described in paragraph (a) of this
section are subject to the following conditions:
(1) The funds must be considered as Federal Part B funds for
purposes of the calculations required by Sec. 300.202(a)(2) and (a)(3).
(2) The funds may be used without regard to the requirements of
Sec. 300.202(a)(1).
(c) Meeting other Part B requirements. Except as provided in
paragraph (b) of this section, all other requirements of Part B of the
Act must be met by an LEA using Part B funds in accordance with
paragraph (a) of this section, including ensuring that children with
disabilities in schoolwide program schools--
(1) Receive services in accordance with a properly developed IEP;
and
(2) Are afforded all of the rights and services guaranteed to
children with disabilities under the Act.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(2)(D))
Sec. 300.207 Personnel development.
The LEA must ensure that all personnel necessary to carry out Part B
of the Act are appropriately and adequately prepared, subject to the
requirements of Sec. 300.156 (related to personnel qualifications) and
section 2122 of the ESEA.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(3))
Sec. 300.208 Permissive use of funds.
(a) Uses. Notwithstanding Secs. 300.202, 300.203(b), and 300.162(b),
funds provided to an LEA under Part B of the Act may be used for the
following activities:
(1) Services and aids that also benefit nondisabled children. For
the costs of special education and related services, and supplementary
aids and services, provided in a regular class or other education-
related setting to a child with a disability in accordance with the IEP
of the child, even if one or more nondisabled children benefit from
these services.
(2) Early intervening services. To develop and implement
coordinated, early intervening educational services in accordance with
Sec. 300.226.
(3) High cost special education and related services. To establish
and implement cost or risk sharing funds, consortia, or cooperatives for
the LEA itself, or for LEAs working in a consortium of which the LEA is
a part, to pay for high cost special education and related services.
(b) Administrative case management. An LEA may use funds received
under Part B of the Act to purchase appropriate technology for
recordkeeping, data collection, and related case management activities
of teachers and related services personnel providing services described
in the IEP of children with disabilities, that is needed for the
implementation of those case management activities.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(4))
[71 FR 46753, Aug. 14, 2006, as amended at 80 FR 23667, Apr. 28, 2015]
Sec. 300.209 Treatment of charter schools and their students.
(a) Rights of children with disabilities. Children with disabilities
who attend public charter schools and their parents retain all rights
under this part.
(b) Charter schools that are public schools of the LEA. (1) In
carrying out Part B of the Act and these regulations with respect to
charter schools that are public schools of the LEA, the LEA must--
(i) Serve children with disabilities attending those charter schools
in the same manner as the LEA serves children with disabilities in its
other schools, including providing supplementary and related services on
site at the charter school to the same extent to which the LEA has a
policy or practice of providing such services on the site to its other
public schools; and
(ii) Provide funds under Part B of the Act to those charter
schools--
(A) On the same basis as the LEA provides funds to the LEA's other
public schools, including proportional distribution based on relative
enrollment of children with disabilities; and
[[Page 60]]
(B) At the same time as the LEA distributes other Federal funds to
the LEA's other public schools, consistent with the State's charter
school law.
(2) If the public charter school is a school of an LEA that receives
funding under Sec. 300.705 and includes other public schools--
(i) The LEA is responsible for ensuring that the requirements of
this part are met, unless State law assigns that responsibility to some
other entity; and
(ii) The LEA must meet the requirements of paragraph (b)(1) of this
section.
(c) Public charter schools that are LEAs. If the public charter
school is an LEA, consistent with Sec. 300.28, that receives funding
under Sec. 300.705, that charter school is responsible for ensuring that
the requirements of this part are met, unless State law assigns that
responsibility to some other entity.
(d) Public charter schools that are not an LEA or a school that is
part of an LEA. (1) If the public charter school is not an LEA receiving
funding under Sec. 300.705, or a school that is part of an LEA receiving
funding under Sec. 300.705, the SEA is responsible for ensuring that the
requirements of this part are met.
(2) Paragraph (d)(1) of this section does not preclude a State from
assigning initial responsibility for ensuring the requirements of this
part are met to another entity. However, the SEA must maintain the
ultimate responsibility for ensuring compliance with this part,
consistent with Sec. 300.149.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(5))
Sec. 300.210 Purchase of instructional materials.
(a) General. Not later than December 3, 2006, an LEA that chooses to
coordinate with the National Instructional Materials Access Center
(NIMAC), when purchasing print instructional materials, must acquire
those instructional materials in the same manner, and subject to the
same conditions as an SEA under Sec. 300.172.
(b) Rights of LEA. (1) Nothing in this section shall be construed to
require an LEA to coordinate with the NIMAC.
(2) If an LEA chooses not to coordinate with the NIMAC, the LEA must
provide an assurance to the SEA that the LEA will provide instructional
materials to blind persons or other persons with print disabilities in a
timely manner.
(3) Nothing in this section relieves an LEA of its responsibility to
ensure that children with disabilities who need instructional materials
in accessible formats but are not included under the definition of blind
or other persons with print disabilities in Sec. 300.172(e)(1)(i) or who
need materials that cannot be produced from NIMAS files, receive those
instructional materials in a timely manner.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(6))
Sec. 300.211 Information for SEA.
The LEA must provide the SEA with information necessary to enable
the SEA to carry out its duties under Part B of the Act, including, with
respect to Secs. 300.157 and 300.160, information relating to the
performance of children with disabilities participating in programs
carried out under Part B of the Act.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(7))
Sec. 300.212 Public information.
The LEA must make available to parents of children with disabilities
and to the general public all documents relating to the eligibility of
the agency under Part B of the Act.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(8))
Sec. 300.213 Records regarding migratory children with disabilities.
The LEA must cooperate in the Secretary's efforts under section 1308
of the ESEA to ensure the linkage of records pertaining to migratory
children with disabilities for the purpose of electronically exchanging,
among the
[[Page 61]]
States, health and educational information regarding those children.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(a)(9))
Secs. 300.214-300.219 [Reserved]
Sec. 300.220 Exception for prior local plans.
(a) General. If an LEA or a State agency described in Sec. 300.228
has on file with the SEA policies and procedures that demonstrate that
the LEA or State agency meets any requirement of Sec. 300.200, including
any policies and procedures filed under Part B of the Act as in effect
before December 3, 2004, the SEA must consider the LEA or State agency
to have met that requirement for purposes of receiving assistance under
Part B of the Act.
(b) Modification made by an LEA or State agency. Subject to
paragraph (c) of this section, policies and procedures submitted by an
LEA or a State agency in accordance with this subpart remain in effect
until the LEA or State agency submits to the SEA the modifications that
the LEA or State agency determines are necessary.
(c) Modifications required by the SEA. The SEA may require an LEA or
a State agency to modify its policies and procedures, but only to the
extent necessary to ensure the LEA's or State agency's compliance with
Part B of the Act or State law, if--
(1) After December 3, 2004, the effective date of the Individuals
with Disabilities Education Improvement Act of 2004, the applicable
provisions of the Act (or the regulations developed to carry out the
Act) are amended;
(2) There is a new interpretation of an applicable provision of the
Act by Federal or State courts; or
(3) There is an official finding of noncompliance with Federal or
State law or regulations.
(Authority: 20 U.S.C. 1413(b))
Sec. 300.221 Notification of LEA or State agency in case of ineligibility.
If the SEA determines that an LEA or State agency is not eligible
under Part B of the Act, then the SEA must--
(a) Notify the LEA or State agency of that determination; and
(b) Provide the LEA or State agency with reasonable notice and an
opportunity for a hearing.
(Authority: 20 U.S.C. 1413(c))
Sec. 300.222 LEA and State agency compliance.
(a) General. If the SEA, after reasonable notice and an opportunity
for a hearing, finds that an LEA or State agency that has been
determined to be eligible under this subpart is failing to comply with
any requirement described in Secs. 300.201 through 300.213, the SEA must
reduce or must not provide any further payments to the LEA or State
agency until the SEA is satisfied that the LEA or State agency is
complying with that requirement.
(b) Notice requirement. Any State agency or LEA in receipt of a
notice described in paragraph (a) of this section must, by means of
public notice, take the measures necessary to bring the pendency of an
action pursuant to this section to the attention of the public within
the jurisdiction of the agency.
(c) Consideration. In carrying out its responsibilities under this
section, each SEA must consider any decision resulting from a hearing
held under Secs. 300.511 through 300.533 that is adverse to the LEA or
State agency involved in the decision.
(Authority: 20 U.S.C. 1413(d))
Sec. 300.223 Joint establishment of eligibility.
(a) General. An SEA may require an LEA to establish its eligibility
jointly with another LEA if the SEA determines that the LEA will be
ineligible under this subpart because the agency will not be able to
establish and maintain programs of sufficient size and scope to
effectively meet the needs of children with disabilities.
(b) Charter school exception. An SEA may not require a charter
school that is an LEA to jointly establish its eligibility under
paragraph (a) of this section unless the charter school is explicitly
permitted to do so under the State's charter school statute.
[[Page 62]]
(c) Amount of payments. If an SEA requires the joint establishment
of eligibility under paragraph (a) of this section, the total amount of
funds made available to the affected LEAs must be equal to the sum of
the payments that each LEA would have received under Sec. 300.705 if the
agencies were eligible for those payments.
(Authority: 20 U.S.C. 1413(e)(1) and (2))
Sec. 300.224 Requirements for establishing eligibility.
(a) Requirements for LEAs in general. LEAs that establish joint
eligibility under this section must--
(1) Adopt policies and procedures that are consistent with the
State's policies and procedures under Secs. 300.101 through 300.163, and
Secs. 300.165 through 300.174; and
(2) Be jointly responsible for implementing programs that receive
assistance under Part B of the Act.
(b) Requirements for educational service agencies in general. If an
educational service agency is required by State law to carry out
programs under Part B of the Act, the joint responsibilities given to
LEAs under Part B of the Act--
(1) Do not apply to the administration and disbursement of any
payments received by that educational service agency; and
(2) Must be carried out only by that educational service agency.
(c) Additional requirement. Notwithstanding any other provision of
Secs. 300.223 through 300.224, an educational service agency must
provide for the education of children with disabilities in the least
restrictive environment, as required by Sec. 300.112.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(e)(3) and (4))
Sec. 300.225 [Reserved]
Sec. 300.226 Early intervening services.
(a) General. An LEA may not use more than 15 percent of the amount
the LEA receives under Part B of the Act for any fiscal year, less any
amount reduced by the LEA pursuant to Sec. 300.205, if any, in
combination with other amounts (which may include amounts other than
education funds), to develop and implement coordinated, early
intervening services, which may include interagency financing
structures, for students in kindergarten through grade 12 (with a
particular emphasis on students in kindergarten through grade three) who
are not currently identified as needing special education or related
services, but who need additional academic and behavioral support to
succeed in a general education environment. (See appendix D for examples
of how Sec. 300.205(d), regarding local maintenance of effort, and
Sec. 300.226(a) affect one another.)
(b) Activities. In implementing coordinated, early intervening
services under this section, an LEA may carry out activities that
include--
(1) Professional development (which may be provided by entities
other than LEAs) for teachers and other school staff to enable such
personnel to deliver scientifically based academic and behavioral
interventions, including scientifically based literacy instruction, and,
where appropriate, instruction on the use of adaptive and instructional
software; and
(2) Providing educational and behavioral evaluations, services, and
supports, including scientifically based literacy instruction.
(c) Construction. Nothing in this section shall be construed to
either limit or create a right to FAPE under Part B of the Act or to
delay appropriate evaluation of a child suspected of having a
disability.
(d) Reporting. Each LEA that develops and maintains coordinated,
early intervening services under this section must annually report to
the SEA on--
(1) The number of children served under this section who received
early intervening services; and
(2) The number of children served under this section who received
early intervening services and subsequently receive special education
and related services under Part B of the Act during the preceding two
year period.
(e) Coordination with ESEA. Funds made available to carry out this
section may be used to carry out coordinated, early intervening services
aligned with activities funded by, and carried out under the ESEA if
those funds are used to supplement, and not
[[Page 63]]
supplant, funds made available under the ESEA for the activities and
services assisted under this section.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1413(f))
Sec. 300.227 Direct services by the SEA.
(a) General. (1) An SEA must use the payments that would otherwise
have been available to an LEA or to a State agency to provide special
education and related services directly to children with disabilities
residing in the area served by that LEA, or for whom that State agency
is responsible, if the SEA determines that the LEA or State agency--
(i) Has not provided the information needed to establish the
eligibility of the LEA or State agency, or elected not to apply for its
Part B allotment, under Part B of the Act;
(ii) Is unable to establish and maintain programs of FAPE that meet
the requirements of this part;
(iii) Is unable or unwilling to be consolidated with one or more
LEAs in order to establish and maintain the programs; or
(iv) Has one or more children with disabilities who can best be
served by a regional or State program or service delivery system
designed to meet the needs of these children.
(2) SEA administrative procedures. (i) In meeting the requirements
in paragraph (a)(1) of this section, the SEA may provide special
education and related services directly, by contract, or through other
arrangements.
(ii) The excess cost requirements of Sec. 300.202(b) do not apply to
the SEA.
(b) Manner and location of education and services. The SEA may
provide special education and related services under paragraph (a) of
this section in the manner and at the locations (including regional or
State centers) as the SEA considers appropriate. The education and
services must be provided in accordance with this part.
(Authority: 20 U.S.C. 1413(g))
Sec. 300.228 State agency eligibility.
Any State agency that desires to receive a subgrant for any fiscal
year under Sec. 300.705 must demonstrate to the satisfaction of the SEA
that--
(a) All children with disabilities who are participating in programs
and projects funded under Part B of the Act receive FAPE, and that those
children and their parents are provided all the rights and procedural
safeguards described in this part; and
(b) The agency meets the other conditions of this subpart that apply
to LEAs.
(Authority: 20 U.S.C. 1413(h))
Sec. 300.229 Disciplinary information.
(a) The State may require that a public agency include in the
records of a child with a disability a statement of any current or
previous disciplinary action that has been taken against the child and
transmit the statement to the same extent that the disciplinary
information is included in, and transmitted with, the student records of
nondisabled children.
(b) The statement may include a description of any behavior engaged
in by the child that required disciplinary action, a description of the
disciplinary action taken, and any other information that is relevant to
the safety of the child and other individuals involved with the child.
(c) If the State adopts such a policy, and the child transfers from
one school to another, the transmission of any of the child's records
must include both the child's current IEP and any statement of current
or previous disciplinary action that has been taken against the child.
(Authority: 20 U.S.C. 1413(i))
Sec. 300.230 SEA flexibility.
(a) Adjustment to State fiscal effort in certain fiscal years. For
any fiscal year for which the allotment received by a State under
Sec. 300.703 exceeds the amount the State received for the previous
fiscal year and if the State in school year 2003-2004 or any subsequent
school year pays or reimburses all LEAs within the State from State
revenue 100 percent of the non-Federal share of the costs of special
education and related services, the SEA, notwithstanding Secs. 300.162
through 300.163 (related to State-level nonsupplanting
[[Page 64]]
and maintenance of effort), and Sec. 300.175 (related to direct services
by the SEA) may reduce the level of expenditures from State sources for
the education of children with disabilities by not more than 50 percent
of the amount of such excess.
(b) Prohibition. Notwithstanding paragraph (a) of this section, if
the Secretary determines that an SEA is unable to establish, maintain,
or oversee programs of FAPE that meet the requirements of this part, or
that the State needs assistance, intervention, or substantial
intervention under Sec. 300.603, the Secretary prohibits the SEA from
exercising the authority in paragraph (a) of this section.
(c) Education activities. If an SEA exercises the authority under
paragraph (a) of this section, the agency must use funds from State
sources, in an amount equal to the amount of the reduction under
paragraph (a) of this section, to support activities authorized under
the ESEA, or to support need-based student or teacher higher education
programs.
(d) Report. For each fiscal year for which an SEA exercises the
authority under paragraph (a) of this section, the SEA must report to
the Secretary--
(1) The amount of expenditures reduced pursuant to that paragraph;
and
(2) The activities that were funded pursuant to paragraph (c) of
this section.
(e) Limitation. (1) Notwithstanding paragraph (a) of this section,
an SEA may not reduce the level of expenditures described in paragraph
(a) of this section if any LEA in the State would, as a result of such
reduction, receive less than 100 percent of the amount necessary to
ensure that all children with disabilities served by the LEA receive
FAPE from the combination of Federal funds received under Part B of the
Act and State funds received from the SEA.
(2) If an SEA exercises the authority under paragraph (a) of this
section, LEAs in the State may not reduce local effort under
Sec. 300.205 by more than the reduction in the State funds they receive.
(Authority: 20 U.S.C. 1413(j))
Subpart D_Evaluations, Eligibility Determinations, Individualized
Education Programs, and Educational Placements
Parental Consent
Sec. 300.300 Parental consent.
(a) Parental consent for initial evaluation. (1)(i) The public
agency proposing to conduct an initial evaluation to determine if a
child qualifies as a child with a disability under Sec. 300.8 must,
after providing notice consistent with Secs. 300.503 and 300.504, obtain
informed consent, consistent with Sec. 300.9, from the parent of the
child before conducting the evaluation.
(ii) Parental consent for initial evaluation must not be construed
as consent for initial provision of special education and related
services.
(iii) The public agency must make reasonable efforts to obtain the
informed consent from the parent for an initial evaluation to determine
whether the child is a child with a disability.
(2) For initial evaluations only, if the child is a ward of the
State and is not residing with the child's parent, the public agency is
not required to obtain informed consent from the parent for an initial
evaluation to determine whether the child is a child with a disability
if--
(i) Despite reasonable efforts to do so, the public agency cannot
discover the whereabouts of the parent of the child;
(ii) The rights of the parents of the child have been terminated in
accordance with State law; or
(iii) The rights of the parent to make educational decisions have
been subrogated by a judge in accordance with State law and consent for
an initial evaluation has been given by an individual appointed by the
judge to represent the child.
(3)(i) If the parent of a child enrolled in public school or seeking
to be enrolled in public school does not provide consent for initial
evaluation under paragraph (a)(1) of this section, or the parent fails
to respond to a request to provide consent, the public agency may, but
is not required to, pursue the
[[Page 65]]
initial evaluation of the child by utilizing the procedural safeguards
in subpart E of this part (including the mediation procedures under
Sec. 300.506 or the due process procedures under Secs. 300.507 through
300.516), if appropriate, except to the extent inconsistent with State
law relating to such parental consent.
(ii) The public agency does not violate its obligation under
Sec. 300.111 and Secs. 300.301 through 300.311 if it declines to pursue
the evaluation.
(b) Parental consent for services. (1) A public agency that is
responsible for making FAPE available to a child with a disability must
obtain informed consent from the parent of the child before the initial
provision of special education and related services to the child.
(2) The public agency must make reasonable efforts to obtain
informed consent from the parent for the initial provision of special
education and related services to the child.
(3) If the parent of a child fails to respond to a request for, or
refuses to consent to, the initial provision of special education and
related services, the public agency--
(i) May not use the procedures in subpart E of this part (including
the mediation procedures under Sec. 300.506 or the due process
procedures under Secs. 300.507 through 300.516) in order to obtain
agreement or a ruling that the services may be provided to the child;
(ii) Will not be considered to be in violation of the requirement to
make FAPE available to the child because of the failure to provide the
child with the special education and related services for which the
parent refuses to or fails to provide consent; and
(iii) Is not required to convene an IEP Team meeting or develop an
IEP under Secs. 300.320 and 300.324 for the child.
(4) If, at any time subsequent to the initial provision of special
education and related services, the parent of a child revokes consent in
writing for the continued provision of special education and related
services, the public agency--
(i) May not continue to provide special education and related
services to the child, but must provide prior written notice in
accordance with Sec. 300.503 before ceasing the provision of special
education and related services;
(ii) May not use the procedures in subpart E of this part (including
the mediation procedures under Sec. 300.506 or the due process
procedures under Secs. 300.507 through 300.516) in order to obtain
agreement or a ruling that the services may be provided to the child;
(iii) Will not be considered to be in violation of the requirement
to make FAPE available to the child because of the failure to provide
the child with further special education and related services; and
(iv) Is not required to convene an IEP Team meeting or develop an
IEP under Secs. 300.320 and 300.324 for the child for further provision
of special education and related services.
(c) Parental consent for reevaluations. (1) Subject to paragraph
(c)(2) of this section, each public agency--
(i) Must obtain informed parental consent, in accordance with
Sec. 300.300(a)(1), prior to conducting any reevaluation of a child with
a disability.
(ii) If the parent refuses to consent to the reevaluation, the
public agency may, but is not required to, pursue the reevaluation by
using the consent override procedures described in paragraph (a)(3) of
this section.
(iii) The public agency does not violate its obligation under
Sec. 300.111 and Secs. 300.301 through 300.311 if it declines to pursue
the evaluation or reevaluation.
(2) The informed parental consent described in paragraph (c)(1) of
this section need not be obtained if the public agency can demonstrate
that--
(i) It made reasonable efforts to obtain such consent; and
(ii) The child's parent has failed to respond.
(d) Other consent requirements.
(1) Parental consent is not required before--
(i) Reviewing existing data as part of an evaluation or a
reevaluation; or
(ii) Administering a test or other evaluation that is administered
to all children unless, before administration of that test or
evaluation, consent is required of parents of all children.
(2) In addition to the parental consent requirements described in
paragraphs (a), (b), and (c) of this section, a State may require
parental consent for other services and activities under this
[[Page 66]]
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.
(3) A public agency may not use a parent's refusal to consent to one
service or activity under paragraphs (a), (b), (c), or (d)(2) of this
section to deny the parent or child any other service, benefit, or
activity of the public agency, except as required by this part.
(4)(i) If a parent of a child who is home schooled or placed in a
private school by the parents at their own expense does not provide
consent for the initial evaluation or the reevaluation, or the parent
fails to respond to a request to provide consent, the public agency may
not use the consent override procedures (described in paragraphs (a)(3)
and (c)(1) of this section); and
(ii) The public agency is not required to consider the child as
eligible for services under Secs. 300.132 through 300.144.
(5) To meet the reasonable efforts requirement in paragraphs
(a)(1)(iii), (a)(2)(i), (b)(2), and (c)(2)(i) of this section, the
public agency must document its attempts to obtain parental consent
using the procedures in Sec. 300.322(d).
(Authority: 20 U.S.C. 1414(a)(1)(D) and 1414(c))
[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]
Evaluations and Reevaluations
Sec. 300.301 Initial evaluations.
(a) General. Each public agency must conduct a full and individual
initial evaluation, in accordance with Secs. 300.304 through 300.306,
before the initial provision of special education and related services
to a child with a disability under this part.
(b) Request for initial evaluation. Consistent with the consent
requirements in Sec. 300.300, either a parent of a child or a public
agency may initiate a request for an initial evaluation to determine if
the child is a child with a disability.
(c) Procedures for initial evaluation. The initial evaluation--
(1)(i) Must be conducted within 60 days of receiving parental
consent for the evaluation; or
(ii) If the State establishes a timeframe within which the
evaluation must be conducted, within that timeframe; and
(2) Must consist of procedures--
(i) To determine if the child is a child with a disability under
Sec. 300.8; and
(ii) To determine the educational needs of the child.
(d) Exception. The timeframe described in paragraph (c)(1) of this
section does not apply to a public agency if--
(1) The parent of a child repeatedly fails or refuses to produce the
child for the evaluation; or
(2) A child enrolls in a school of another public agency after the
relevant timeframe in paragraph (c)(1) of this section has begun, and
prior to a determination by the child's previous public agency as to
whether the child is a child with a disability under Sec. 300.8.
(e) The exception in paragraph (d)(2) of this section applies only
if the subsequent public agency is making sufficient progress to ensure
a prompt completion of the evaluation, and the parent and subsequent
public agency agree to a specific time when the evaluation will be
completed.
(Authority: 20 U.S.C. 1414(a))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.302 Screening for instructional purposes is not evaluation.
The screening of a student by a teacher or specialist to determine
appropriate instructional strategies for curriculum implementation shall
not be considered to be an evaluation for eligibility for special
education and related services.
(Authority: 20 U.S.C. 1414(a)(1)(E))
Sec. 300.303 Reevaluations.
(a) General. A public agency must ensure that a reevaluation of each
child with a disability is conducted in accordance with Secs. 300.304
through 300.311--
(1) If the public agency determines that the educational or related
services needs, including improved academic achievement and functional
performance, of the child warrant a reevaluation; or
[[Page 67]]
(2) If the child's parent or teacher requests a reevaluation.
(b) Limitation. A reevaluation conducted under paragraph (a) of this
section--
(1) May occur not more than once a year, unless the parent and the
public agency agree otherwise; and
(2) Must occur at least once every 3 years, unless the parent and
the public agency agree that a reevaluation is unnecessary.
(Authority: 20 U.S.C. 1414(a)(2))
Sec. 300.304 Evaluation procedures.
(a) Notice. The public agency must provide notice to the parents of
a child with a disability, in accordance with Sec. 300.503, that
describes any evaluation procedures the agency proposes to conduct.
(b) Conduct of evaluation. In conducting the evaluation, the public
agency must--
(1) Use a variety of assessment tools and strategies to gather
relevant functional, developmental, and academic information about the
child, including information provided by the parent, that may assist in
determining--
(i) Whether the child is a child with a disability under Sec. 300.8;
and
(ii) The content of the child's IEP, including information related
to enabling the child to be involved in and progress in the general
education curriculum (or for a preschool child, to participate in
appropriate activities);
(2) Not use any single measure or assessment as the sole criterion
for determining whether a child is a child with a disability and for
determining an appropriate educational program for the child; and
(3) Use technically sound instruments that may assess the relative
contribution of cognitive and behavioral factors, in addition to
physical or developmental factors.
(c) Other evaluation procedures. Each public agency must ensure
that--
(1) Assessments and other evaluation materials used to assess a
child under this part--
(i) Are selected and administered so as not to be discriminatory on
a racial or cultural basis;
(ii) Are provided and administered in the child's native language or
other mode of communication and in the form most likely to yield
accurate information on what the child knows and can do academically,
developmentally, and functionally, unless it is clearly not feasible to
so provide or administer;
(iii) Are used for the purposes for which the assessments or
measures are valid and reliable;
(iv) Are administered by trained and knowledgeable personnel; and
(v) Are administered in accordance with any instructions provided by
the producer of the assessments.
(2) Assessments 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.
(3) Assessments are selected and administered so as best to ensure
that if an assessment is administered to a child with impaired sensory,
manual, or speaking skills, the assessment results accurately reflect
the child's aptitude or achievement level or whatever other factors the
test purports to measure, rather than reflecting the child's impaired
sensory, manual, or speaking skills (unless those skills are the factors
that the test purports to measure).
(4) 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;
(5) Assessments of children with disabilities who transfer from one
public agency to another public agency in the same school year are
coordinated with those children's prior and subsequent schools, as
necessary and as expeditiously as possible, consistent with
Sec. 300.301(d)(2) and (e), to ensure prompt completion of full
evaluations.
(6) In evaluating each child with a disability under Secs. 300.304
through 300.306, the evaluation is sufficiently comprehensive to
identify all of the child's special education and related services
needs, whether or not commonly linked to the disability category in
which the child has been classified.
[[Page 68]]
(7) Assessment tools and strategies that provide relevant
information that directly assists persons in determining the educational
needs of the child are provided.
(Authority: 20 U.S.C. 1414(b)(1)-(3), 1412(a)(6)(B))
Sec. 300.305 Additional requirements for evaluations and reevaluations.
(a) Review of existing evaluation data. As part of an initial
evaluation (if appropriate) and as part of any reevaluation under this
part, the IEP Team and other qualified professionals, as appropriate,
must--
(1) Review existing evaluation data on the child, including--
(i) Evaluations and information provided by the parents of the
child;
(ii) Current classroom-based, local, or State assessments, and
classroom-based observations; and
(iii) Observations by teachers and related services providers; and
(2) On the basis of that review, and input from the child's parents,
identify what additional data, if any, are needed to determine--
(i)(A) Whether the child is a child with a disability, as defined in
Sec. 300.8, and the educational needs of the child; or
(B) In case of a reevaluation of a child, whether the child
continues to have such a disability, and the educational needs of the
child;
(ii) The present levels of academic achievement and related
developmental needs of the child;
(iii)(A) Whether the child needs special education and related
services; or
(B) In the case of a reevaluation of a child, whether the child
continues to need special education and related services; and
(iv) Whether any additions or modifications to the special education
and related services are needed to enable the child to meet the
measurable annual goals set out in the IEP of the child and to
participate, as appropriate, in the general education curriculum.
(b) Conduct of review. The group described in paragraph (a) of this
section may conduct its review without a meeting.
(c) Source of data. The public agency must administer such
assessments and other evaluation measures as may be needed to produce
the data identified under paragraph (a) of this section.
(d) Requirements if additional data are not needed. (1) If the IEP
Team and other qualified professionals, as appropriate, determine that
no additional data are needed to determine whether the child continues
to be a child with a disability, and to determine the child's
educational needs, the public agency must notify the child's parents
of--
(i) That determination and the reasons for the determination; and
(ii) The right of the parents to request an assessment to determine
whether the child continues to be a child with a disability, and to
determine the child's educational needs.
(2) The public agency is not required to conduct the assessment
described in paragraph (d)(1)(ii) of this section unless requested to do
so by the child's parents.
(e) Evaluations before change in eligibility. (1) Except as provided
in paragraph (e)(2) of this section, a public agency must evaluate a
child with a disability in accordance with Secs. 300.304 through 300.311
before determining that the child is no longer a child with a
disability.
(2) The evaluation described in paragraph (e)(1) of this section is
not required before the termination of a child's eligibility under this
part due to graduation from secondary school with a regular diploma, or
due to exceeding the age eligibility for FAPE under State law.
(3) For a child whose eligibility terminates under circumstances
described in paragraph (e)(2) of this section, a public agency must
provide the child with a summary of the child's academic achievement and
functional performance, which shall include recommendations on how to
assist the child in meeting the child's postsecondary goals.
(Authority: 20 U.S.C. 1414(c))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
[[Page 69]]
Sec. 300.306 Determination of eligibility.
(a) General. Upon completion of the administration of assessments
and other evaluation measures--
(1) A group of qualified professionals and the parent of the child
determines whether the child is a child with a disability, as defined in
Sec. 300.8, in accordance with paragraph (c) of this section and the
educational needs of the child; and
(2) The public agency provides a copy of the evaluation report and
the documentation of determination of eligibility at no cost to the
parent.
(b) Special rule for eligibility determination. A child must not be
determined to be a child with a disability under this part--
(1) If the determinant factor for that determination is--
(i) Lack of appropriate instruction in reading, including the
essential components of reading instruction (as defined in section
1208(3) of the ESEA);
(ii) Lack of appropriate instruction in math; or
(iii) Limited English proficiency; and
(2) If the child does not otherwise meet the eligibility criteria
under Sec. 300.8(a).
(c) Procedures for determining eligibility and educational need. (1)
In interpreting evaluation data for the purpose of determining if a
child is a child with a disability under Sec. 300.8, and the educational
needs of the child, each public agency must--
(i) Draw upon information from a variety of sources, including
aptitude and achievement tests, parent input, and teacher
recommendations, as well as information about the child's physical
condition, social or cultural background, and adaptive behavior; and
(ii) Ensure that information obtained from all of these sources is
documented and carefully considered.
(2) 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. 300.320 through 300.324.
(Authority: 20 U.S.C. 1414(b)(4) and (5))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Additional Procedures for Identifying Children With Specific Learning
Disabilities
Sec. 300.307 Specific learning disabilities.
(a) General. A State must adopt, consistent with Sec. 300.309,
criteria for determining whether a child has a specific learning
disability as defined in Sec. 300.8(c)(10). In addition, the criteria
adopted by the State--
(1) Must not require the use of a severe discrepancy between
intellectual ability and achievement for determining whether a child has
a specific learning disability, as defined in Sec. 300.8(c)(10);
(2) Must permit the use of a process based on the child's response
to scientific, research-based intervention; and
(3) May permit the use of other alternative research-based
procedures for determining whether a child has a specific learning
disability, as defined in Sec. 300.8(c)(10).
(b) Consistency with State criteria. A public agency must use the
State criteria adopted pursuant to paragraph (a) of this section in
determining whether a child has a specific learning disability.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.308 Additional group members.
The determination of whether a child suspected of having a specific
learning disability is a child with a disability as defined in
Sec. 300.8, must be made by the child's parents and a team of qualified
professionals, which must include--
(a)(1) The child's regular teacher; or
(2) If the child does not have a regular teacher, a regular
classroom teacher qualified to teach a child of his or her age; or
(3) For a child of less than school age, an individual qualified by
the SEA to teach a child of his or her age; and
(b) At least one person qualified to conduct individual diagnostic
examinations of children, such as a school psychologist, speech-language
pathologist, or remedial reading teacher.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
[[Page 70]]
Sec. 300.309 Determining the existence of a specific learning disability.
(a) The group described in Sec. 300.306 may determine that a child
has a specific learning disability, as defined in Sec. 300.8(c)(10),
if--
(1) The child does not achieve adequately for the child's age or to
meet State-approved grade-level standards in one or more of the
following areas, when provided with learning experiences and instruction
appropriate for the child's age or State-approved grade-level standards:
(i) Oral expression.
(ii) Listening comprehension.
(iii) Written expression.
(iv) Basic reading skill.
(v) Reading fluency skills.
(vi) Reading comprehension.
(vii) Mathematics calculation.
(viii) Mathematics problem solving.
(2)(i) The child does not make sufficient progress to meet age or
State-approved grade-level standards in one or more of the areas
identified in paragraph (a)(1) of this section when using a process
based on the child's response to scientific, research-based
intervention; or
(ii) The child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved
grade-level standards, or intellectual development, that is determined
by the group to be relevant to the identification of a specific learning
disability, using appropriate assessments, consistent with Secs. 300.304
and 300.305; and
(3) The group determines that its findings under paragraphs (a)(1)
and (2) of this section are not primarily the result of--
(i) A visual, hearing, or motor disability;
(ii) Mental retardation;
(iii) Emotional disturbance;
(iv) Cultural factors;
(v) Environmental or economic disadvantage; or
(vi) Limited English proficiency.
(b) To ensure that underachievement in a child suspected of having a
specific learning disability is not due to lack of appropriate
instruction in reading or math, the group must consider, as part of the
evaluation described in Secs. 300.304 through 300.306--
(1) Data that demonstrate that prior to, or as a part of, the
referral process, the child was provided appropriate instruction in
regular education settings, delivered by qualified personnel; and
(2) Data-based documentation of repeated assessments of achievement
at reasonable intervals, reflecting formal assessment of student
progress during instruction, which was provided to the child's parents.
(c) The public agency must promptly request parental consent to
evaluate the child to determine if the child needs special education and
related services, and must adhere to the timeframes described in
Secs. 300.301 and 300.303, unless extended by mutual written agreement
of the child's parents and a group of qualified professionals, as
described in Sec. 300.306(a)(1)--
(1) If, prior to a referral, a child has not made adequate progress
after an appropriate period of time when provided instruction, as
described in paragraphs (b)(1) and (b)(2) of this section; and
(2) Whenever a child is referred for an evaluation.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.310 Observation.
(a) The public agency must ensure that the child is observed in the
child's learning environment (including the regular classroom setting)
to document the child's academic performance and behavior in the areas
of difficulty.
(b) The group described in Sec. 300.306(a)(1), in determining
whether a child has a specific learning disability, must decide to--
(1) Use information from an observation in routine classroom
instruction and monitoring of the child's performance that was done
before the child was referred for an evaluation; or
(2) Have at least one member of the group described in
Sec. 300.306(a)(1) conduct an observation of the child's academic
performance in the regular classroom after the child has been referred
for an evaluation and parental consent, consistent with Sec. 300.300(a),
is obtained.
(c) In the case of a child of less than school age or out of school,
a group member must observe the child in an
[[Page 71]]
environment appropriate for a child of that age.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Sec. 300.311 Specific documentation for the eligibility determination.
(a) For a child suspected of having a specific learning disability,
the documentation of the determination of eligibility, as required in
Sec. 300.306(a)(2), must contain a statement of--
(1) Whether the child has a specific learning disability;
(2) The basis for making the determination, including an assurance
that the determination has been made in accordance with
Sec. 300.306(c)(1);
(3) The relevant behavior, if any, noted during the observation of
the child and the relationship of that behavior to the child's academic
functioning;
(4) The educationally relevant medical findings, if any;
(5) Whether--
(i) The child does not achieve adequately for the child's age or to
meet State-approved grade-level standards consistent with
Sec. 300.309(a)(1); and
(ii)(A) The child does not make sufficient progress to meet age or
State-approved grade-level standards consistent with
Sec. 300.309(a)(2)(i); or
(B) The child exhibits a pattern of strengths and weaknesses in
performance, achievement, or both, relative to age, State-approved grade
level standards or intellectual development consistent with
Sec. 300.309(a)(2)(ii);
(6) The determination of the group concerning the effects of a
visual, hearing, or motor disability; mental retardation; emotional
disturbance; cultural factors; environmental or economic disadvantage;
or limited English proficiency on the child's achievement level; and
(7) If the child has participated in a process that assesses the
child's response to scientific, research-based intervention--
(i) The instructional strategies used and the student-centered data
collected; and
(ii) The documentation that the child's parents were notified
about--
(A) The State's policies regarding the amount and nature of student
performance data that would be collected and the general education
services that would be provided;
(B) Strategies for increasing the child's rate of learning; and
(C) The parents' right to request an evaluation.
(b) Each group member must certify in writing whether the report
reflects the member's conclusion. If it does not reflect the member's
conclusion, the group member must submit a separate statement presenting
the member's conclusions.
(Authority: 20 U.S.C. 1221e-3; 1401(30); 1414(b)(6))
Individualized Education Programs
Sec. 300.320 Definition of individualized education program.
(a) General. As used in this part, the term individualized education
program or IEP means a written statement for each child with a
disability that is developed, reviewed, and revised in a meeting in
accordance with Secs. 300.320 through 300.324, and that must include--
(1) A statement of the child's present levels of academic
achievement and functional performance, including--
(i) How the child's disability affects the child's involvement and
progress in the general education curriculum (i.e., the same curriculum
as for nondisabled children); or
(ii) For preschool children, as appropriate, how the disability
affects the child's participation in appropriate activities;
(2)(i) A statement of measurable annual goals, including academic
and functional goals designed to--
(A) Meet the child's needs that result from the child's disability
to enable the child to be involved in and make progress in the general
education curriculum; and
(B) Meet each of the child's other educational needs that result
from the child's disability;
(ii) For children with disabilities who take alternate assessments
aligned to alternate academic achievement standards, a description of
benchmarks or short-term objectives;
(3) A description of--
[[Page 72]]
(i) How the child's progress toward meeting the annual goals
described in paragraph (2) of this section will be measured; and
(ii) When periodic reports on the progress the child is making
toward meeting the annual goals (such as through the use of quarterly or
other periodic reports, concurrent with the issuance of report cards)
will be provided;
(4) A statement of the special education and related services and
supplementary aids and services, based on peer-reviewed research to the
extent practicable, to be provided to the child, or on behalf of the
child, and a statement of the program modifications or supports for
school personnel that will be provided to enable the child--
(i) To advance appropriately toward attaining the annual goals;
(ii) To be involved in and make progress in the general education
curriculum in accordance with paragraph (a)(1) of this section, and to
participate in extracurricular and other nonacademic activities; and
(iii) To be educated and participate with other children with
disabilities and nondisabled children in the activities described in
this section;
(5) An explanation of the extent, if any, to which the child will
not participate with nondisabled children in the regular class and in
the activities described in paragraph (a)(4) of this section;
(6)(i) A statement of any individual appropriate accommodations that
are necessary to measure the academic achievement and functional
performance of the child on State and districtwide assessments
consistent with section 612(a)(16) of the Act; and
(ii) If the IEP Team determines that the child must take an
alternate assessment instead of a particular regular State or
districtwide assessment of student achievement, a statement of why--
(A) The child cannot participate in the regular assessment; and
(B) The particular alternate assessment selected is appropriate for
the child; and
(7) The projected date for the beginning of the services and
modifications described in paragraph (a)(4) of this section, and the
anticipated frequency, location, and duration of those services and
modifications.
(b) Transition services. Beginning not later than the first IEP to
be in effect when the child turns 16, or younger if determined
appropriate by the IEP Team, and updated annually, thereafter, the IEP
must include--
(1) Appropriate measurable postsecondary goals based upon age
appropriate transition assessments related to training, education,
employment, and, where appropriate, independent living skills; and
(2) The transition services (including courses of study) needed to
assist the child in reaching those goals.
(c) Transfer of rights at age of majority. Beginning not later than
one year before the child reaches the age of majority under State law,
the IEP must include a statement that the child has been informed of the
child's rights under Part B of the Act, if any, that will transfer to
the child on reaching the age of majority under Sec. 300.520.
(d) Construction. Nothing in this section shall be construed to
require--
(1) That additional information be included in a child's IEP beyond
what is explicitly required in section 614 of the Act; or
(2) The IEP Team to include information under one component of a
child's IEP that is already contained under another component of the
child's IEP.
(Authority: 20 U.S.C. 1414(d)(1)(A) and (d)(6))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.321 IEP Team.
(a) General. The public agency must ensure that the IEP Team for
each child with a disability includes--
(1) The parents of the child;
(2) Not less than one regular education teacher of the child (if the
child is, or may be, participating in the regular education
environment);
(3) Not less than one special education teacher of the child, or
where appropriate, not less than one special education provider of the
child;
(4) A representative of the public agency who--
(i) Is qualified to provide, or supervise the provision of,
specially designed
[[Page 73]]
instruction to meet the unique needs of children with disabilities;
(ii) Is knowledgeable about the general education curriculum; and
(iii) Is knowledgeable about the availability of resources of the
public agency.
(5) An individual who can interpret the instructional implications
of evaluation results, who may be a member of the team described in
paragraphs (a)(2) through (a)(6) of this section;
(6) At the discretion of the parent or the agency, other individuals
who have knowledge or special expertise regarding the child, including
related services personnel as appropriate; and
(7) Whenever appropriate, the child with a disability.
(b) Transition services participants. (1) In accordance with
paragraph (a)(7) of this section, the public agency must invite a child
with a disability to attend the child's IEP Team meeting if a purpose of
the meeting will be the consideration of the postsecondary goals for the
child and the transition services needed to assist the child in reaching
those goals under Sec. 300.320(b).
(2) If the child does not attend the IEP Team meeting, the public
agency must take other steps to ensure that the child's preferences and
interests are considered.
(3) To the extent appropriate, with the consent of the parents or a
child who has reached the age of majority, in implementing the
requirements of paragraph (b)(1) of this section, the public agency must
invite a representative of any participating agency that is likely to be
responsible for providing or paying for transition services.
(c) Determination of knowledge and special expertise. The
determination of the knowledge or special expertise of any individual
described in paragraph (a)(6) of this section must be made by the party
(parents or public agency) who invited the individual to be a member of
the IEP Team.
(d) Designating a public agency representative. A public agency may
designate a public agency member of the IEP Team to also serve as the
agency representative, if the criteria in paragraph (a)(4) of this
section are satisfied.
(e) IEP Team attendance. (1) A member of the IEP Team described in
paragraphs (a)(2) through (a)(5) of this section is not required to
attend an IEP Team meeting, in whole or in part, if the parent of a
child with a disability and the public agency agree, in writing, that
the attendance of the member is not necessary because the member's area
of the curriculum or related services is not being modified or discussed
in the meeting.
(2) A member of the IEP Team described in paragraph (e)(1) of this
section may be excused from attending an IEP Team meeting, in whole or
in part, when the meeting involves a modification to or discussion of
the member's area of the curriculum or related services, if--
(i) The parent, in writing, and the public agency consent to the
excusal; and
(ii) The member submits, in writing to the parent and the IEP Team,
input into the development of the IEP prior to the meeting.
(f) Initial IEP Team meeting for child under Part C. In the case of
a child who was previously served under Part C of the Act, an invitation
to the initial IEP Team meeting must, at the request of the parent, be
sent to the Part C service coordinator or other representatives of the
Part C system to assist with the smooth transition of services.
(Authority: 20 U.S.C. 1414(d)(1)(B)-(d)(1)(D))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.322 Parent participation.
(a) Public agency responsibility--general. Each public agency must
take steps to ensure that one or both of the parents of a child with a
disability are present at each IEP Team meeting or are afforded the
opportunity to participate, including--
(1) Notifying parents of the meeting early enough to ensure that
they will have an opportunity to attend; and
(2) Scheduling the meeting at a mutually agreed on time and place.
(b) Information provided to parents. (1) The notice required under
paragraph (a)(1) of this section must--
[[Page 74]]
(i) Indicate the purpose, time, and location of the meeting and who
will be in attendance; and
(ii) Inform the parents of the provisions in Sec. 300.321(a)(6) and
(c) (relating to the participation of other individuals on the IEP Team
who have knowledge or special expertise about the child), and
Sec. 300.321(f) (relating to the participation of the Part C service
coordinator or other representatives of the Part C system at the initial
IEP Team meeting for a child previously served under Part C of the Act).
(2) For a child with a disability beginning not later than the first
IEP to be in effect when the child turns 16, or younger if determined
appropriate by the IEP Team, the notice also must--
(i) Indicate--
(A) That a purpose of the meeting will be the consideration of the
postsecondary goals and transition services for the child, in accordance
with Sec. 300.320(b); and
(B) That the agency will invite the student; and
(ii) Identify any other agency that will be invited to send a
representative.
(c) Other methods to ensure parent participation. If neither parent
can attend an IEP Team meeting, the public agency must use other methods
to ensure parent participation, including individual or conference
telephone calls, consistent with Sec. 300.328 (related to alternative
means of meeting participation).
(d) Conducting an IEP Team meeting without a parent in attendance. A
meeting may be conducted without a parent in attendance if the public
agency is unable to convince the parents that they should attend. In
this case, the public agency must keep a record of its attempts to
arrange a mutually agreed on time and place, such as--
(1) Detailed records of telephone calls made or attempted and the
results of those calls;
(2) Copies of correspondence sent to the parents and any responses
received; and
(3) Detailed records of visits made to the parent's home or place of
employment and the results of those visits.
(e) Use of interpreters or other action, as appropriate. The public
agency must take whatever action is necessary to ensure that the parent
understands the proceedings of the IEP Team meeting, including arranging
for an interpreter for parents with deafness or whose native language is
other than English.
(f) Parent copy of child's IEP. The public agency must give the
parent a copy of the child's IEP at no cost to the parent.
(Authority: 20 U.S.C. 1414(d)(1)(B)(i))
Sec. 300.323 When IEPs must be in effect.
(a) General. At the beginning of each school year, each public
agency must have in effect, for each child with a disability within its
jurisdiction, an IEP, as defined in Sec. 300.320.
(b) IEP or IFSP for children aged three through five. (1) In the
case of a child with a disability aged three through five (or, at the
discretion of the SEA, a two-year-old child with a disability who will
turn age three during the school year), the IEP Team must consider an
IFSP that contains the IFSP content (including the natural environments
statement) described in section 636(d) of the Act and its implementing
regulations (including an educational component that promotes school
readiness and incorporates pre-literacy, language, and numeracy skills
for children with IFSPs under this section who are at least three years
of age), and that is developed in accordance with the IEP procedures
under this part. The IFSP may serve as the IEP of the child, if using
the IFSP as the IEP is--
(i) Consistent with State policy; and
(ii) Agreed to by the agency and the child's parents.
(2) In implementing the requirements of paragraph (b)(1) of this
section, the public agency must--
(i) Provide to the child's parents a detailed explanation of the
differences between an IFSP and an IEP; and
(ii) If the parents choose an IFSP, obtain written informed consent
from the parents.
(c) Initial IEPs; provision of services. Each public agency must
ensure that--
(1) A meeting to develop an IEP for a child is conducted within 30
days of a determination that the child needs special education and
related services; and
(2) As soon as possible following development of the IEP, special
education and related services are made
[[Page 75]]
available to the child in accordance with the child's IEP.
(d) Accessibility of child's IEP to teachers and others. Each public
agency must ensure that--
(1) The child's IEP is accessible to each regular education teacher,
special education teacher, related services provider, and any other
service provider who is responsible for its implementation; and
(2) Each teacher and provider described in paragraph (d)(1) of this
section is informed of--
(i) His or her specific responsibilities related to implementing the
child's IEP; and
(ii) The specific accommodations, modifications, and supports that
must be provided for the child in accordance with the IEP.
(e) IEPs for children who transfer public agencies in the same
State. If a child with a disability (who had an IEP that was in effect
in a previous public agency in the same State) transfers to a new public
agency in the same State, and enrolls in a new school within the same
school year, the new public agency (in consultation with the parents)
must provide FAPE to the child (including services comparable to those
described in the child's IEP from the previous public agency), until the
new public agency either--
(1) Adopts the child's IEP from the previous public agency; or
(2) Develops, adopts, and implements a new IEP that meets the
applicable requirements in Secs. 300.320 through 300.324.
(f) IEPs for children who transfer from another State. If a child
with a disability (who had an IEP that was in effect in a previous
public agency in another State) transfers to a public agency in a new
State, and enrolls in a new school within the same school year, the new
public agency (in consultation with the parents) must provide the child
with FAPE (including services comparable to those described in the
child's IEP from the previous public agency), until the new public
agency--
(1) Conducts an evaluation pursuant to Secs. 300.304 through 300.306
(if determined to be necessary by the new public agency); and
(2) Develops, adopts, and implements a new IEP, if appropriate, that
meets the applicable requirements in Secs. 300.320 through 300.324.
(g) Transmittal of records. To facilitate the transition for a child
described in paragraphs (e) and (f) of this section--
(1) The new public agency in which the child enrolls must take
reasonable steps to promptly obtain the child's records, including the
IEP and supporting documents and any other records relating to the
provision of special education or related services to the child, from
the previous public agency in which the child was enrolled, pursuant to
34 CFR 99.31(a)(2); and
(2) The previous public agency in which the child was enrolled must
take reasonable steps to promptly respond to the request from the new
public agency.
(Authority: 20 U.S.C. 1414(d)(2)(A)-(C))
Development of IEP
Sec. 300.324 Development, review, and revision of IEP.
(a) Development of IEP--(1) General. In developing each child's IEP,
the IEP Team must consider--
(i) The strengths of the child;
(ii) The concerns of the parents for enhancing the education of
their child;
(iii) The results of the initial or most recent evaluation of the
child; and
(iv) The academic, developmental, and functional needs of the child.
(2) Consideration of special factors. The IEP Team must--
(i) In the case of a child whose behavior impedes the child's
learning or that of others, consider the use of positive behavioral
interventions and supports, and other strategies, to address that
behavior;
(ii) In the case of a child with limited English proficiency,
consider the language needs of the child as those needs relate to the
child's IEP;
(iii) In the case of a child who is blind or visually impaired,
provide for instruction in Braille and the use of Braille unless the IEP
Team determines, after an evaluation of the child's reading and writing
skills, needs, and appropriate reading and writing media (including an
evaluation of the child's future needs for instruction in Braille or the
use of Braille),
[[Page 76]]
that instruction in Braille or the use of Braille is not appropriate for
the child;
(iv) Consider the communication needs of the child, and in the case
of a child who is deaf or hard of hearing, consider the child's language
and communication needs, opportunities for direct communications with
peers and professional personnel in the child's language and
communication mode, academic level, and full range of needs, including
opportunities for direct instruction in the child's language and
communication mode; and
(v) Consider whether the child needs assistive technology devices
and services.
(3) Requirement with respect to regular education teacher. A regular
education teacher of a child with a disability, as a member of the IEP
Team, must, to the extent appropriate, participate in the development of
the IEP of the child, including the determination of--
(i) Appropriate positive behavioral interventions and supports and
other strategies for the child; and
(ii) Supplementary aids and services, program modifications, and
support for school personnel consistent with Sec. 300.320(a)(4).
(4) Agreement. (i) In making changes to a child's IEP after the
annual IEP Team meeting for a school year, the parent of a child with a
disability and the public agency may agree not to convene an IEP Team
meeting for the purposes of making those changes, and instead may
develop a written document to amend or modify the child's current IEP.
(ii) If changes are made to the child's IEP in accordance with
paragraph (a)(4)(i) of this section, the public agency must ensure that
the child's IEP Team is informed of those changes.
(5) Consolidation of IEP Team meetings. To the extent possible, the
public agency must encourage the consolidation of reevaluation meetings
for the child and other IEP Team meetings for the child.
(6) Amendments. Changes to the IEP may be made either by the entire
IEP Team at an IEP Team meeting, or as provided in paragraph (a)(4) of
this section, by amending the IEP rather than by redrafting the entire
IEP. Upon request, a parent must be provided with a revised copy of the
IEP with the amendments incorporated.
(b) Review and revision of IEPs--(1) General. Each public agency
must ensure that, subject to paragraphs (b)(2) and (b)(3) of this
section, the IEP Team--
(i) Reviews the child's IEP periodically, but not less than
annually, to determine whether the annual goals for the child are being
achieved; and
(ii) Revises the IEP, as appropriate, to address--
(A) Any lack of expected progress toward the annual goals described
in Sec. 300.320(a)(2), and in the general education curriculum, if
appropriate;
(B) The results of any reevaluation conducted under Sec. 300.303;
(C) Information about the child provided to, or by, the parents, as
described under Sec. 300.305(a)(2);
(D) The child's anticipated needs; or
(E) Other matters.
(2) Consideration of special factors. In conducting a review of the
child's IEP, the IEP Team must consider the special factors described in
paragraph (a)(2) of this section.
(3) Requirement with respect to regular education teacher. A regular
education teacher of the child, as a member of the IEP Team, must,
consistent with paragraph (a)(3) of this section, participate in the
review and revision of the IEP of the child.
(c) Failure to meet transition objectives--(1) Participating agency
failure. If a participating agency, other than the public agency, fails
to provide the transition services described in the IEP in accordance
with Sec. 300.320(b), the public agency must reconvene the IEP Team to
identify alternative strategies to meet the transition objectives for
the child set out in the IEP.
(2) Construction. 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 children with disabilities who meet
the eligibility criteria of that agency.
(d) Children with disabilities in adult prisons--(1) Requirements
that do not apply. The following requirements do not apply to children
with disabilities
[[Page 77]]
who are convicted as adults under State law and incarcerated in adult
prisons:
(i) The requirements contained in section 612(a)(16) of the Act and
Sec. 300.320(a)(6) (relating to participation of children with
disabilities in general assessments).
(ii) The requirements in Sec. 300.320(b) (relating to transition
planning and transition services) do not apply with respect to the
children whose eligibility under Part B of the Act will end, because of
their age, before they will be eligible to be released from prison based
on consideration of their sentence and eligibility for early release.
(2) Modifications of IEP or placement. (i) Subject to paragraph
(d)(2)(ii) of this section, the IEP Team of a child with a disability
who is convicted as an adult under State law and incarcerated in an
adult prison may modify the child's IEP or placement if the State has
demonstrated a bona fide security or compelling penological interest
that cannot otherwise be accommodated.
(ii) The requirements of Secs. 300.320 (relating to IEPs), and
300.112 (relating to LRE), do not apply with respect to the
modifications described in paragraph (d)(2)(i) of this section.
(Authority: 20 U.S.C. 1412(a)(1), 1412(a)(12)(A)(i), 1414(d)(3), (4)(B),
and (7); and 1414(e))
Sec. 300.325 Private school placements by public agencies.
(a) Developing IEPs. (1) Before a public agency places a child with
a disability in, or refers a child to, a private school or facility, the
agency must initiate and conduct a meeting to develop an IEP for the
child in accordance with Secs. 300.320 and 300.324.
(2) The agency must ensure that a representative of the private
school or facility attends the meeting. If the representative cannot
attend, the agency must use other methods to ensure participation by the
private school or facility, including individual or conference telephone
calls.
(b) Reviewing and revising IEPs. (1) After a child with a disability
enters a private school or facility, any meetings to review and revise
the child's IEP may be initiated and conducted by the private school or
facility at the discretion of the public agency.
(2) If the private school or facility initiates and conducts these
meetings, the public agency must ensure that the parents and an agency
representative--
(i) Are involved in any decision about the child's IEP; and
(ii) Agree to any proposed changes in the IEP before those changes
are implemented.
(c) Responsibility. Even if a private school or facility implements
a child's IEP, responsibility for compliance with this part remains with
the public agency and the SEA.
(Authority: 20 U.S.C. 1412(a)(10)(B))
Sec. 300.326 [Reserved]
Sec. 300.327 Educational placements.
Consistent with Sec. 300.501(c), each public agency must ensure that
the parents of each child with a disability are members of any group
that makes decisions on the educational placement of their child.
(Authority: 20 U.S.C. 1414(e))
Sec. 300.328 Alternative means of meeting participation.
When conducting IEP Team meetings and placement meetings pursuant to
this subpart, and subpart E of this part, and carrying out
administrative matters under section 615 of the Act (such as scheduling,
exchange of witness lists, and status conferences), the parent of a
child with a disability and a public agency may agree to use alternative
means of meeting participation, such as video conferences and conference
calls.
(Authority: 20 U.S.C. 1414(f))
Subpart E_Procedural Safeguards Due Process Procedures for Parents and
Children
Sec. 300.500 Responsibility of SEA and other public agencies.
Each SEA must ensure that each public agency establishes, maintains,
and implements procedural safeguards that meet the requirements of
Secs. 300.500 through 300.536.
(Authority: 20 U.S.C. 1415(a))
[[Page 78]]
Sec. 300.501 Opportunity to examine records; parent participation
in meetings.
(a) Opportunity to examine records. The parents of a child with a
disability must be afforded, in accordance with the procedures of
Secs. 300.613 through 300.621, an opportunity to inspect and review all
education records with respect to--
(1) The identification, evaluation, and educational placement of the
child; and
(2) The provision of FAPE to the child.
(b) Parent participation in meetings. (1) The parents of a child
with a disability must be afforded an opportunity to participate in
meetings with respect to--
(i) The identification, evaluation, and educational placement of the
child; and
(ii) The provision of FAPE to the child.
(2) Each public agency must provide notice consistent with
Sec. 300.322(a)(1) and (b)(1) to ensure that parents of children with
disabilities have the opportunity to participate in meetings described
in paragraph (b)(1) of this section.
(3) A meeting does not include informal or unscheduled conversations
involving public agency personnel and conversations on issues such as
teaching methodology, lesson plans, or coordination of service
provision. A meeting also does not include preparatory activities that
public agency personnel engage in to develop a proposal or response to a
parent proposal that will be discussed at a later meeting.
(c) Parent involvement in placement decisions. (1) Each public
agency must ensure that a parent of each child with a disability is a
member of any group that makes decisions on the educational placement of
the parent's child.
(2) In implementing the requirements of paragraph (c)(1) of this
section, the public agency must use procedures consistent with the
procedures described in Sec. 300.322(a) through (b)(1).
(3) If neither parent can participate in a meeting in which a
decision is to be made relating to the educational placement of their
child, the public agency must use other methods to ensure their
participation, including individual or conference telephone calls, or
video conferencing.
(4) A placement decision may be made by a group without the
involvement of a parent, if the public agency is unable to obtain the
parent's participation in the decision. In this case, the public agency
must have a record of its attempt to ensure their involvement.
(Authority: 20 U.S.C. 1414(e), 1415(b)(1))
Sec. 300.502 Independent educational evaluation.
(a) General. (1) The parents of a child with a disability have the
right under this part to obtain an independent educational evaluation of
the child, subject to paragraphs (b) through (e) of this section.
(2) Each public agency must provide to parents, upon request for an
independent educational evaluation, information about where an
independent educational evaluation may be obtained, and the agency
criteria applicable for independent educational evaluations as set forth
in paragraph (e) of this section.
(3) For the purposes of this subpart--
(i) Independent educational evaluation means an evaluation conducted
by a qualified examiner who is not employed by the public agency
responsible for the education of the child in question; and
(ii) Public expense means that the public agency either pays for the
full cost of the evaluation or ensures that the evaluation is otherwise
provided at no cost to the parent, consistent with Sec. 300.103.
(b) Parent right to evaluation at public expense. (1) A parent has
the right to an independent educational evaluation at public expense if
the parent disagrees with an evaluation obtained by the public agency,
subject to the conditions in paragraphs (b)(2) through (4) of this
section.
(2) If a parent requests an independent educational evaluation at
public expense, the public agency must, without unnecessary delay,
either--
(i) File a due process complaint to request a hearing to show that
its evaluation is appropriate; or
[[Page 79]]
(ii) Ensure that an independent educational evaluation is provided
at public expense, unless the agency demonstrates in a hearing pursuant
to Secs. 300.507 through 300.513 that the evaluation obtained by the
parent did not meet agency criteria.
(3) If the public agency files a due process complaint notice to
request a hearing and the final decision is that the agency's evaluation
is appropriate, the parent still has the right to an independent
educational evaluation, but not at public expense.
(4) If a parent requests an independent educational evaluation, the
public agency may ask for the parent's reason why he or she objects to
the public evaluation. However, the public agency may not require the
parent to provide an explanation and may not unreasonably delay either
providing the independent educational evaluation at public expense or
filing a due process complaint to request a due process hearing to
defend the public evaluation.
(5) A parent is entitled to only one independent educational
evaluation at public expense each time the public agency conducts an
evaluation with which the parent disagrees.
(c) Parent-initiated evaluations. If the parent obtains an
independent educational evaluation at public expense or shares with the
public agency an evaluation obtained at private expense, the results of
the evaluation--
(1) Must be considered by the public agency, if it meets agency
criteria, in any decision made with respect to the provision of FAPE to
the child; and
(2) May be presented by any party as evidence at a hearing on a due
process complaint under subpart E of this part regarding that child.
(d) Requests for evaluations by hearing officers. If a hearing
officer requests an independent educational evaluation as part of a
hearing on a due process complaint, the cost of the evaluation must be
at public expense.
(e) Agency criteria. (1) If an independent educational evaluation is
at public expense, the criteria under which the evaluation is obtained,
including the location of the evaluation and the qualifications of the
examiner, must be the same as the criteria that the public agency uses
when it initiates an evaluation, to the extent those criteria are
consistent with the parent's right to an independent educational
evaluation.
(2) Except for the criteria described in paragraph (e)(1) of this
section, a public agency may not impose conditions or timelines related
to obtaining an independent educational evaluation at public expense.
(Authority: 20 U.S.C. 1415(b)(1) and (d)(2)(A))
Sec. 300.503 Prior notice by the public agency; content of notice.
(a) Notice. Written notice that meets the requirements of paragraph
(b) of this section must be given to the parents of a child with a
disability a reasonable time before the public agency--
(1) Proposes to initiate or change the identification, evaluation,
or educational placement of the child or the provision of FAPE to the
child; or
(2) Refuses to initiate or change the identification, evaluation, or
educational placement of the child or the provision of FAPE to the
child.
(b) Content of notice. The notice required under paragraph (a) of
this section must include--
(1) A description of the action proposed or refused by the agency;
(2) An explanation of why the agency proposes or refuses to take the
action;
(3) A description of each evaluation procedure, assessment, record,
or report the agency used as a basis for the proposed or refused action;
(4) A statement that the parents of a child with a disability have
protection under the procedural safeguards of this part and, if this
notice is not an initial referral for evaluation, the means by which a
copy of a description of the procedural safeguards can be obtained;
(5) Sources for parents to contact to obtain assistance in
understanding the provisions of this part;
(6) A description of other options that the IEP Team considered and
the reasons why those options were rejected; and
(7) A description of other factors that are relevant to the agency's
proposal or refusal.
[[Page 80]]
(c) Notice in understandable language. (1) The notice required under
paragraph (a) of this section must be--
(i) Written in language understandable to the general public; and
(ii) Provided in the native language of the parent or other mode of
communication used by the parent, unless it is clearly not feasible to
do so.
(2) If the native language or other mode of communication of the
parent is not a written language, the public agency must take steps to
ensure--
(i) That the notice is translated orally or by other means to the
parent in his or her native language or other mode of communication;
(ii) That the parent understands the content of the notice; and
(iii) That there is written evidence that the requirements in
paragraphs (c)(2)(i) and (ii) of this section have been met.
(Authority: 20 U.S.C. 1415(b)(3) and (4), 1415(c)(1), 1414(b)(1))
Sec. 300.504 Procedural safeguards notice.
(a) General. A copy of the procedural safeguards available to the
parents of a child with a disability must be given to the parents only
one time a school year, except that a copy also must be given to the
parents--
(1) Upon initial referral or parent request for evaluation;
(2) Upon receipt of the first State complaint under Secs. 300.151
through 300.153 and upon receipt of the first due process complaint
under Sec. 300.507 in a school year;
(3) In accordance with the discipline procedures in Sec. 300.530(h);
and
(4) Upon request by a parent.
(b) Internet Web site. A public agency may place a current copy of
the procedural safeguards notice on its Internet Web site if a Web site
exists.
(c) Contents. The procedural safeguards notice must include a full
explanation of all of the procedural safeguards available under
Sec. 300.148, Secs. 300.151 through 300.153, Sec. 300.300, Secs. 300.502
through 300.503, Secs. 300.505 through 300.518, Secs. 300.530 through
300.536 and Secs. 300.610 through 300.625 relating to--
(1) Independent educational evaluations;
(2) Prior written notice;
(3) Parental consent;
(4) Access to education records;
(5) Opportunity to present and resolve complaints through the due
process complaint and State complaint procedures, including--
(i) The time period in which to file a complaint;
(ii) The opportunity for the agency to resolve the complaint; and
(iii) The difference between the due process complaint and the State
complaint procedures, including the jurisdiction of each procedure, what
issues may be raised, filing and decisional timelines, and relevant
procedures;
(6) The availability of mediation;
(7) The child's placement during the pendency of any due process
complaint;
(8) Procedures for students who are subject to placement in an
interim alternative educational setting;
(9) Requirements for unilateral placement by parents of children in
private schools at public expense;
(10) Hearings on due process complaints, including requirements for
disclosure of evaluation results and recommendations;
(11) State-level appeals (if applicable in the State);
(12) Civil actions, including the time period in which to file those
actions; and
(13) Attorneys' fees.
(d) Notice in understandable language. The notice required under
paragraph (a) of this section must meet the requirements of
Sec. 300.503(c).
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1415(d))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.505 Electronic mail.
A parent of a child with a disability may elect to receive notices
required by Secs. 300.503, 300.504, and 300.508 by an electronic mail
communication, if the public agency makes that option available.
(Authority: 20 U.S.C. 1415(n))
Sec. 300.506 Mediation.
(a) General. Each public agency must ensure that procedures are
established
[[Page 81]]
and implemented to allow parties to disputes involving any matter under
this part, including matters arising prior to the filing of a due
process complaint, to resolve disputes through a mediation process.
(b) Requirements. The procedures must meet the following
requirements:
(1) The procedures must ensure that the mediation process--
(i) Is voluntary on the part of the parties;
(ii) Is not used to deny or delay a parent's right to a hearing on
the parent's due process complaint, or to deny any other rights afforded
under Part B of the Act; and
(iii) Is conducted by a qualified and impartial mediator who is
trained in effective mediation techniques.
(2) A public agency may establish procedures to offer to parents and
schools that choose not to use the mediation process, an opportunity to
meet, at a time and location convenient to the parents, with a
disinterested party--
(i) Who is under contract with an appropriate alternative dispute
resolution entity, or a parent training and information center or
community parent resource center in the State established under section
671 or 672 of the Act; and
(ii) Who would explain the benefits of, and encourage the use of,
the mediation process to the parents.
(3)(i) The State must maintain a list of individuals who are
qualified mediators and knowledgeable in laws and regulations relating
to the provision of special education and related services.
(ii) The SEA must select mediators on a random, rotational, or other
impartial basis.
(4) The State must bear the cost of the mediation process, including
the costs of meetings described in paragraph (b)(2) of this section.
(5) Each session in the mediation process must be scheduled in a
timely manner and must be held in a location that is convenient to the
parties to the dispute.
(6) If the parties resolve a dispute through the mediation process,
the parties must execute a legally binding agreement that sets forth
that resolution and that--
(i) States that all discussions that occurred during the mediation
process will remain confidential and may not be used as evidence in any
subsequent due process hearing or civil proceeding; and
(ii) Is signed by both the parent and a representative of the agency
who has the authority to bind such agency.
(7) A written, signed mediation agreement under this paragraph is
enforceable in any State court of competent jurisdiction or in a
district court of the United States.
(8) Discussions that occur during the mediation process must be
confidential and may not be used as evidence in any subsequent due
process hearing or civil proceeding of any Federal court or State court
of a State receiving assistance under this part.
(c) Impartiality of mediator. (1) An individual who serves as a
mediator under this part--
(i) May not be an employee of the SEA or the LEA that is involved in
the education or care of the child; and
(ii) Must not have a personal or professional interest that
conflicts with the person's objectivity.
(2) A person who otherwise qualifies as a mediator is not an
employee of an LEA or State agency described under Sec. 300.228 solely
because he or she is paid by the agency to serve as a mediator.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1415(e))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.507 Filing a due process complaint.
(a) General. (1) A parent or a public agency may file a due process
complaint on any of the matters described in Sec. 300.503(a)(1) and (2)
(relating to the identification, evaluation or educational placement of
a child with a disability, or the provision of FAPE to the child).
(2) The due process complaint must allege a violation that occurred
not more than two years before the date the parent or public agency knew
or should have known about the alleged action that forms the basis of
the due process complaint, or, if the State has
[[Page 82]]
an explicit time limitation for filing a due process complaint under
this part, in the time allowed by that State law, except that the
exceptions to the timeline described in Sec. 300.511(f) apply to the
timeline in this section.
(b) Information for parents. The public agency must 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 files a due process complaint under
this section.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1415(b)(6))
Sec. 300.508 Due process complaint.
(a) General. (1) The public agency must have procedures that require
either party, or the attorney representing a party, to provide to the
other party a due process complaint (which must remain confidential).
(2) The party filing a due process complaint must forward a copy of
the due process complaint to the SEA.
(b) Content of complaint. The due process complaint required in
paragraph (a)(1) of this section must include--
(1) The name of the child;
(2) The address of the residence of the child;
(3) The name of the school the child is attending;
(4) In the case of a homeless child or youth (within the meaning of
section 725(2) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(2)), available contact information for the child, and the name of
the school the child is attending;
(5) A description of the nature of the problem of the child relating
to the proposed or refused initiation or change, including facts
relating to the problem; and
(6) A proposed resolution of the problem to the extent known and
available to the party at the time.
(c) Notice required before a hearing on a due process complaint. A
party may not have a hearing on a due process complaint until the party,
or the attorney representing the party, files a due process complaint
that meets the requirements of paragraph (b) of this section.
(d) Sufficiency of complaint. (1) The due process complaint required
by this section must be deemed sufficient unless the party receiving the
due process complaint notifies the hearing officer and the other party
in writing, within 15 days of receipt of the due process complaint, that
the receiving party believes the due process complaint does not meet the
requirements in paragraph (b) of this section.
(2) Within five days of receipt of notification under paragraph
(d)(1) of this section, the hearing officer must make a determination on
the face of the due process complaint of whether the due process
complaint meets the requirements of paragraph (b) of this section, and
must immediately notify the parties in writing of that determination.
(3) A party may amend its due process complaint only if--
(i) The other party consents in writing to the amendment and is
given the opportunity to resolve the due process complaint through a
meeting held pursuant to Sec. 300.510; or
(ii) The hearing officer grants permission, except that the hearing
officer may only grant permission to amend at any time not later than
five days before the due process hearing begins.
(4) If a party files an amended due process complaint, the timelines
for the resolution meeting in Sec. 300.510(a) and the time period to
resolve in Sec. 300.510(b) begin again with the filing of the amended
due process complaint.
(e) LEA response to a due process complaint. (1) If the LEA has not
sent a prior written notice under Sec. 300.503 to the parent regarding
the subject matter contained in the parent's due process complaint, the
LEA must, within 10 days of receiving the due process complaint, send to
the parent a response that includes--
(i) An explanation of why the agency proposed or refused to take the
action raised in the due process complaint;
(ii) A description of other options that the IEP Team considered and
the reasons why those options were rejected;
[[Page 83]]
(iii) A description of each evaluation procedure, assessment,
record, or report the agency used as the basis for the proposed or
refused action; and
(iv) A description of the other factors that are relevant to the
agency's proposed or refused action.
(2) A response by an LEA under paragraph (e)(1) of this section
shall not be construed to preclude the LEA from asserting that the
parent's due process complaint was insufficient, where appropriate.
(f) Other party response to a due process complaint. Except as
provided in paragraph (e) of this section, the party receiving a due
process complaint must, within 10 days of receiving the due process
complaint, send to the other party a response that specifically
addresses the issues raised in the due process complaint.
(Authority: 20 U.S.C. 1415(b)(7), 1415(c)(2))
Sec. 300.509 Model forms.
(a) Each SEA must develop model forms to assist parents and public
agencies in filing a due process complaint in accordance with
Secs. 300.507(a) and 300.508(a) through (c) and to assist parents and
other parties in filing a State complaint under Secs. 300.151 through
300.153. However, the SEA or LEA may not require the use of the model
forms.
(b) Parents, public agencies, and other parties may use the
appropriate model form described in paragraph (a) of this section, or
another form or other document, so long as the form or document that is
used meets, as appropriate, the content requirements in Sec. 300.508(b)
for filing a due process complaint, or the requirements in
Sec. 300.153(b) for filing a State complaint.
(Authority: 20 U.S.C. 1415(b)(8))
Sec. 300.510 Resolution process.
(a) Resolution meeting. (1) Within 15 days of receiving notice of
the parent's due process complaint, and prior to the initiation of a due
process hearing under Sec. 300.511, the LEA must convene a meeting with
the parent and the relevant member or members of the IEP Team who have
specific knowledge of the facts identified in the due process complaint
that--
(i) Includes a representative of the public agency who has decision-
making authority on behalf of that agency; and
(ii) May not include an attorney of the LEA unless the parent is
accompanied by an attorney.
(2) The purpose of the meeting is for the parent of the child to
discuss the due process complaint, and the facts that form the basis of
the due process complaint, so that the LEA has the opportunity to
resolve the dispute that is the basis for the due process complaint.
(3) The meeting described in paragraph (a)(1) and (2) of this
section need not be held if--
(i) The parent and the LEA agree in writing to waive the meeting; or
(ii) The parent and the LEA agree to use the mediation process
described in Sec. 300.506.
(4) The parent and the LEA determine the relevant members of the IEP
Team to attend the meeting.
(b) Resolution period. (1) If the LEA has not resolved the due
process complaint to the satisfaction of the parent within 30 days of
the receipt of the due process complaint, the due process hearing may
occur.
(2) Except as provided in paragraph (c) of this section, the
timeline for issuing a final decision under Sec. 300.515 begins at the
expiration of this 30-day period.
(3) Except where the parties have jointly agreed to waive the
resolution process or to use mediation, notwithstanding paragraphs
(b)(1) and (2) of this section, the failure of the parent filing a due
process complaint to participate in the resolution meeting will delay
the timelines for the resolution process and due process hearing until
the meeting is held.
(4) If the LEA is unable to obtain the participation of the parent
in the resolution meeting after reasonable efforts have been made (and
documented using the procedures in Sec. 300.322(d)), the LEA may, at the
conclusion of the 30-day period, request that a hearing officer dismiss
the parent's due process complaint.
(5) If the LEA fails to hold the resolution meeting specified in
paragraph (a) of this section within 15 days of receiving notice of a
parent's due process complaint or fails to participate in the
[[Page 84]]
resolution meeting, the parent may seek the intervention of a hearing
officer to begin the due process hearing timeline.
(c) Adjustments to 30-day resolution period. The 45-day timeline for
the due process hearing in Sec. 300.515(a) starts the day after one of
the following events:
(1) Both parties agree in writing to waive the resolution meeting;
(2) After either the mediation or resolution meeting starts but
before the end of the 30-day period, the parties agree in writing that
no agreement is possible;
(3) If both parties agree in writing to continue the mediation at
the end of the 30-day resolution period, but later, the parent or public
agency withdraws from the mediation process.
(d) Written settlement agreement. If a resolution to the dispute is
reached at the meeting described in paragraphs (a)(1) and (2) of this
section, the parties must execute a legally binding agreement that is--
(1) Signed by both the parent and a representative of the agency who
has the authority to bind the agency; and
(2) Enforceable in any State court of competent jurisdiction or in a
district court of the United States, or, by the SEA, if the State has
other mechanisms or procedures that permit parties to seek enforcement
of resolution agreements, pursuant to Sec. 300.537.
(e) Agreement review period. If the parties execute an agreement
pursuant to paragraph (d) of this section, a party may void the
agreement within 3 business days of the agreement's execution.
(Authority: 20 U.S.C. 1415(f)(1)(B))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.511 Impartial due process hearing.
(a) General. Whenever a due process complaint is received under
Sec. 300.507 or Sec. 300.532, the parents or the LEA involved in the
dispute must have an opportunity for an impartial due process hearing,
consistent with the procedures in Secs. 300.507, 300.508, and 300.510.
(b) Agency responsible for conducting the due process hearing. The
hearing described in paragraph (a) of this section must be conducted by
the SEA or the public agency directly responsible for the education of
the child, as determined under State statute, State regulation, or a
written policy of the SEA.
(c) Impartial hearing officer. (1) At a minimum, a hearing officer--
(i) Must not be--
(A) An employee of the SEA or the LEA that is involved in the
education or care of the child; or
(B) A person having a personal or professional interest that
conflicts with the person's objectivity in the hearing;
(ii) Must possess knowledge of, and the ability to understand, the
provisions of the Act, Federal and State regulations pertaining to the
Act, and legal interpretations of the Act by Federal and State courts;
(iii) Must possess the knowledge and ability to conduct hearings in
accordance with appropriate, standard legal practice; and
(iv) Must possess the knowledge and ability to render and write
decisions in accordance with appropriate, standard legal practice.
(2) A person who otherwise qualifies to conduct a hearing under
paragraph (c)(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 hearing officer.
(3) Each public agency must 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.
(d) Subject matter of due process hearings. The party requesting the
due process hearing may not raise issues at the due process hearing that
were not raised in the due process complaint filed under
Sec. 300.508(b), unless the other party agrees otherwise.
(e) Timeline for requesting a hearing. A parent or agency must
request an impartial hearing on their due process complaint within two
years of the date the parent or agency knew or should have known about
the alleged action that forms the basis of the due process complaint, or
if the State has an explicit time limitation for requesting such a due
process hearing under this part, in the time allowed by that State law.
(f) Exceptions to the timeline. The timeline described in paragraph
(e) of
[[Page 85]]
this section does not apply to a parent if the parent was prevented from
filing a due process complaint due to--
(1) Specific misrepresentations by the LEA that it had resolved the
problem forming the basis of the due process complaint; or
(2) The LEA's withholding of information from the parent that was
required under this part to be provided to the parent.
(Approved by the Office of Management and Budget under control number
1820-0600)
(Authority: 20 U.S.C. 1415(f)(1)(A), 1415(f)(3)(A)-(D))
Sec. 300.512 Hearing rights.
(a) General. Any party to a hearing conducted pursuant to
Secs. 300.507 through 300.513 or Secs. 300.530 through 300.534, or an
appeal conducted pursuant to Sec. 300.514, 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, except that whether parties have the right to be
represented by non-attorneys at due process hearings is determined under
State law;
(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 business days before
the hearing;
(4) Obtain a written, or, at the option of the parents, electronic,
verbatim record of the hearing; and
(5) Obtain written, or, at the option of the parents, electronic
findings of fact and decisions.
(b) Additional disclosure of information. (1) At least five business
days prior to a hearing conducted pursuant to Sec. 300.511(a), each
party must disclose to all other parties all evaluations completed by
that date and recommendations based on the offering party's evaluations
that the party intends to use at the hearing.
(2) A hearing officer may bar any party that fails to comply with
paragraph (b)(1) of this section from introducing the relevant
evaluation or recommendation at the hearing without the consent of the
other party.
(c) Parental rights at hearings. Parents involved in hearings must
be given the right to--
(1) Have the child who is the subject of the hearing present;
(2) Open the hearing to the public; and
(3) Have the record of the hearing and the findings of fact and
decisions described in paragraphs (a)(4) and (a)(5) of this section
provided at no cost to parents.
(Authority: 20 U.S.C. 1415(f)(2), 1415(h))
[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]
Sec. 300.513 Hearing decisions.
(a) Decision of hearing officer on the provision of FAPE. (1)
Subject to paragraph (a)(2) of this section, a hearing officer's
determination of whether a child received FAPE must be based on
substantive grounds.
(2) In matters alleging a procedural violation, a hearing officer
may find that a child did not receive a FAPE only if the procedural
inadequacies--
(i) Impeded the child's right to a FAPE;
(ii) Significantly impeded the parent's opportunity to participate
in the decision-making process regarding the provision of a FAPE to the
parent's child; or
(iii) Caused a deprivation of educational benefit.
(3) Nothing in paragraph (a) of this section shall be construed to
preclude a hearing officer from ordering an LEA to comply with
procedural requirements under Secs. 300.500 through 300.536.
(b) Construction clause. Nothing in Secs. 300.507 through 300.513
shall be construed to affect the right of a parent to file an appeal of
the due process hearing decision with the SEA under Sec. 300.514(b), if
a State level appeal is available.
(c) Separate request for a due process hearing. Nothing in
Secs. 300.500 through 300.536 shall be construed to preclude a parent
from filing a separate due process complaint on an issue separate from a
due process complaint already filed.
(d) Findings and decision to advisory panel and general public. The
public agency, after deleting any personally identifiable information,
must--
[[Page 86]]
(1) Transmit the findings and decisions referred to in
Sec. 300.512(a)(5) to the State advisory panel established under
Sec. 300.167; and
(2) Make those findings and decisions available to the public.
(Authority: 20 U.S.C. 1415(f)(3)(E) and (F), 1415(h)(4), 1415(o))
Sec. 300.514 Finality of decision; appeal; impartial review.
(a) Finality of hearing decision. A decision made in a hearing
conducted pursuant to Secs. 300.507 through 300.513 or Secs. 300.530
through 300.534 is final, except that any party involved in the hearing
may appeal the decision under the provisions of paragraph (b) of this
section and Sec. 300.516.
(b) Appeal of decisions; impartial review. (1) If the hearing
required by Sec. 300.511 is conducted by a public agency other than the
SEA, any party aggrieved by the findings and decision in the hearing may
appeal to the SEA.
(2) If there is an appeal, the SEA must conduct an impartial review
of the findings and decision appealed. The official conducting the
review must--
(i) Examine the entire hearing record;
(ii) Ensure that the procedures at the hearing were consistent with
the requirements of due process;
(iii) Seek additional evidence if necessary. If a hearing is held to
receive additional evidence, the rights in Sec. 300.512 apply;
(iv) Afford the parties an opportunity for oral or written argument,
or both, at the discretion of the reviewing official;
(v) Make an independent decision on completion of the review; and
(vi) Give a copy of the written, or, at the option of the parents,
electronic findings of fact and decisions to the parties.
(c) Findings and decision to advisory panel and general public. The
SEA, after deleting any personally identifiable information, must--
(1) Transmit the findings and decisions referred to in paragraph
(b)(2)(vi) of this section to the State advisory panel established under
Sec. 300.167; and
(2) Make those findings and decisions available to the public.
(d) Finality of review decision. The decision made by the reviewing
official is final unless a party brings a civil action under
Sec. 300.516.
(Authority: 20 U.S.C. 1415(g) and (h)(4), 1415(i)(1)(A), 1415(i)(2))
Sec. 300.515 Timelines and convenience of hearings and reviews.
(a) The public agency must ensure that not later than 45 days after
the expiration of the 30 day period under Sec. 300.510(b), or the
adjusted time periods described in Sec. 300.510(c)--
(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 must ensure that not later than 30 days after the
receipt of a request for a review--
(1) A final decision is reached in the review; and
(2) A copy of the decision is mailed to each of the parties.
(c) A hearing or reviewing officer may grant specific extensions of
time beyond the periods set out in paragraphs (a) and (b) of this
section at the request of either party.
(d) Each hearing and each review involving oral arguments must be
conducted at a time and place that is reasonably convenient to the
parents and child involved.
(Authority: 20 U.S.C. 1415(f)(1)(B)(ii), 1415(g), 1415(i)(1))
Sec. 300.516 Civil action.
(a) General. Any party aggrieved by the findings and decision made
under Secs. 300.507 through 300.513 or Secs. 300.530 through 300.534 who
does not have the right to an appeal under Sec. 300.514(b), and any
party aggrieved by the findings and decision under Sec. 300.514(b), has
the right to bring a civil action with respect to the due process
complaint notice requesting a due process hearing under Sec. 300.507 or
Secs. 300.530 through 300.532. The action may be brought in any State
court of competent jurisdiction or in a district court of the United
States without regard to the amount in controversy.
(b) Time limitation. The party bringing the action shall have 90
days from the date of the decision of the hearing officer or, if
applicable, the decision of the
[[Page 87]]
State review official, to file a civil action, or, if the State has an
explicit time limitation for bringing civil actions under Part B of the
Act, in the time allowed by that State law.
(c) Additional requirements. In any action brought under paragraph
(a) of this section, the court--
(1) Receives the records of the administrative proceedings;
(2) Hears additional evidence at the request of a party; and
(3) Basing its decision on the preponderance of the evidence, grants
the relief that the court determines to be appropriate.
(d) Jurisdiction of district courts. The district courts of the
United States have jurisdiction of actions brought under section 615 of
the Act without regard to the amount in controversy.
(e) Rule of construction. Nothing in this part restricts or limits
the rights, procedures, and remedies available under the Constitution,
the Americans with Disabilities Act of 1990, title V of the
Rehabilitation Act of 1973, or other Federal laws protecting the rights
of children with disabilities, except that before the filing of a civil
action under these laws seeking relief that is also available under
section 615 of the Act, the procedures under Secs. 300.507 and 300.514
must be exhausted to the same extent as would be required had the action
been brought under section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(2) and (3)(A), 1415(l))
Sec. 300.517 Attorneys' fees.
(a) In general. (1) In any action or proceeding brought under
section 615 of the Act, the court, in its discretion, may award
reasonable attorneys' fees as part of the costs to--
(i) The prevailing party who is the parent of a child with a
disability;
(ii) To a prevailing party who is an SEA or LEA against the attorney
of a parent who files a complaint or subsequent cause of action that is
frivolous, unreasonable, or without foundation, or against the attorney
of a parent who continued to litigate after the litigation clearly
became frivolous, unreasonable, or without foundation; or
(iii) To a prevailing SEA or LEA against the attorney of a parent,
or against the parent, if the parent's request for a due process hearing
or subsequent cause of action was presented for any improper purpose,
such as to harass, to cause unnecessary delay, or to needlessly increase
the cost of litigation.
(2) Nothing in this subsection shall be construed to affect section
327 of the District of Columbia Appropriations Act, 2005.
(b) Prohibition on use of funds. (1) Funds under Part B of the Act
may not be used to pay attorneys' fees or costs of a party related to
any action or proceeding under section 615 of the Act and subpart E of
this part.
(2) Paragraph (b)(1) of this section does not preclude a public
agency from using funds under Part B of the Act for conducting an action
or proceeding under section 615 of the Act.
(c) Award of fees. A court awards reasonable attorneys' fees under
section 615(i)(3) of the Act consistent with the following:
(1) Fees awarded under section 615(i)(3) of the Act must be based on
rates prevailing in the community in which the action or proceeding
arose for the kind and quality of services furnished. No bonus or
multiplier may be used in calculating the fees awarded under this
paragraph.
(2)(i) Attorneys' fees may not be awarded and related costs may not
be reimbursed in any action or proceeding under section 615 of the Act
for services performed subsequent to the time of a written offer of
settlement to a parent if--
(A) The offer is made within the time prescribed by Rule 68 of the
Federal Rules of Civil Procedure or, in the case of an administrative
proceeding, at any time more than 10 days before the proceeding begins;
(B) The offer is not accepted within 10 days; and
(C) The court or administrative hearing officer finds that the
relief finally obtained by the parents is not more favorable to the
parents than the offer of settlement.
(ii) Attorneys' fees may not be awarded relating to any meeting of
the IEP Team unless the meeting is convened as a result of an
administrative proceeding or judicial action, or at the
[[Page 88]]
discretion of the State, for a mediation described in Sec. 300.506.
(iii) A meeting conducted pursuant to Sec. 300.510 shall not be
considered--
(A) A meeting convened as a result of an administrative hearing or
judicial action; or
(B) An administrative hearing or judicial action for purposes of
this section.
(3) Notwithstanding paragraph (c)(2) of this section, an award of
attorneys' fees and related costs may be made to a parent who is the
prevailing party and who was substantially justified in rejecting the
settlement offer.
(4) Except as provided in paragraph (c)(5) of this section, the
court reduces, accordingly, the amount of the attorneys' fees awarded
under section 615 of the Act, if the court finds that--
(i) The parent, or the parent's attorney, during the course of the
action or proceeding, unreasonably protracted the final resolution of
the controversy;
(ii) The amount of the attorneys' fees otherwise authorized to be
awarded unreasonably exceeds the hourly rate prevailing in the community
for similar services by attorneys of reasonably comparable skill,
reputation, and experience;
(iii) The time spent and legal services furnished were excessive
considering the nature of the action or proceeding; or
(iv) The attorney representing the parent did not provide to the LEA
the appropriate information in the due process request notice in
accordance with Sec. 300.508.
(5) The provisions of paragraph (c)(4) of this section do not apply
in any action or proceeding if the court finds that the State or local
agency unreasonably protracted the final resolution of the action or
proceeding or there was a violation of section 615 of the Act.
(Authority: 20 U.S.C. 1415(i)(3)(B)-(G))
Sec. 300.518 Child's status during proceedings.
(a) Except as provided in Sec. 300.533, during the pendency of any
administrative or judicial proceeding regarding a due process complaint
notice requesting a due process hearing under Sec. 300.507, unless the
State or local agency and the parents of the child agree otherwise, the
child involved in the complaint must remain in his or her current
educational placement.
(b) If the complaint involves an application for initial admission
to public school, the child, with the consent of the parents, must be
placed in the public school until the completion of all the proceedings.
(c) If the complaint involves an application for initial services
under this part from a child who is transitioning from Part C of the Act
to Part B and is no longer eligible for Part C services because the
child has turned three, the public agency is not required to provide the
Part C services that the child had been receiving. If the child is found
eligible for special education and related services under Part B and the
parent consents to the initial provision of special education and
related services under Sec. 300.300(b), then the public agency must
provide those special education and related services that are not in
dispute between the parent and the public agency.
(d) If the hearing officer in a due process hearing conducted by the
SEA or a State review official in an administrative appeal agrees with
the child's parents that a change of placement is appropriate, that
placement must be treated as an agreement between the State and the
parents for purposes of paragraph (a) of this section.
(Authority: 20 U.S.C. 1415(j))
Sec. 300.519 Surrogate parents.
(a) General. Each public agency must ensure that the rights of a
child are protected when--
(1) No parent (as defined in Sec. 300.30) can be identified;
(2) The public agency, after reasonable efforts, cannot locate a
parent;
(3) The child is a ward of the State under the laws of that State;
or
(4) The child is an unaccompanied homeless youth as defined in
section 725(6) of the McKinney-Vento Homeless Assistance Act (42 U.S.C.
11434a(6)).
(b) Duties of public agency. The duties of a public agency under
paragraph (a) of this section include the assignment of an individual to
act as a surrogate for the parents. This must include a method--
[[Page 89]]
(1) For determining whether a child needs a surrogate parent; and
(2) For assigning a surrogate parent to the child.
(c) Wards of the State. In the case of a child who is a ward of the
State, the surrogate parent alternatively may be appointed by the judge
overseeing the child's case, provided that the surrogate meets the
requirements in paragraphs (d)(2)(i) and (e) of this section.
(d) Criteria for selection of surrogate parents. (1) The public
agency may select a surrogate parent in any way permitted under State
law.
(2) Public agencies must ensure that a person selected as a
surrogate parent--
(i) Is not an employee of the SEA, the LEA, or any other agency that
is involved in the education or care of the child;
(ii) Has no personal or professional interest that conflicts with
the interest of the child the surrogate parent represents; and
(iii) Has knowledge and skills that ensure adequate representation
of the child.
(e) Non-employee requirement; compensation. A person otherwise
qualified to be a surrogate parent under paragraph (d) 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.
(f) Unaccompanied homeless youth. In the case of a child who is an
unaccompanied homeless youth, appropriate staff of emergency shelters,
transitional shelters, independent living programs, and street outreach
programs may be appointed as temporary surrogate parents without regard
to paragraph (d)(2)(i) of this section, until a surrogate parent can be
appointed that meets all of the requirements of paragraph (d) of this
section.
(g) Surrogate parent 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.
(h) SEA responsibility. The SEA must make reasonable efforts to
ensure the assignment of a surrogate parent not more than 30 days after
a public agency determines that the child needs a surrogate parent.
(Authority: 20 U.S.C. 1415(b)(2))
Sec. 300.520 Transfer of parental rights at age of majority.
(a) General. A State may provide that, when a child with a
disability reaches the age of majority under State law that applies to
all children (except for a child with a disability who has been
determined to be incompetent under State law)--
(1)(i) The public agency must provide any notice required by this
part to both the child and the parents; and
(ii) All rights accorded to parents under Part B of the Act transfer
to the child;
(2) All rights accorded to parents under Part B of the Act transfer
to children who are incarcerated in an adult or juvenile, State or local
correctional institution; and
(3) Whenever a State provides for the transfer of rights under this
part pursuant to paragraph (a)(1) or (a)(2) of this section, the agency
must notify the child and the parents of the transfer of rights.
(b) Special rule. A State must establish procedures for appointing
the parent of a child with a disability, or, if the parent is not
available, another appropriate individual, to represent the educational
interests of the child throughout the period of the child's eligibility
under Part B of the Act if, under State law, a child who has reached the
age of majority, but has not been determined to be incompetent, can be
determined not to have the ability to provide informed consent with
respect to the child's educational program.
(Authority: 20 U.S.C. 1415(m))
Secs. 300.521-300.529 [Reserved]
Discipline Procedures
Sec. 300.530 Authority of school personnel.
(a) Case-by-case determination. School personnel may consider any
unique circumstances on a case-by-case basis when determining whether a
change in placement, consistent with the other
[[Page 90]]
requirements of this section, is appropriate for a child with a
disability who violates a code of student conduct.
(b) General. (1) School personnel under this section may remove a
child with a disability who violates a code of student conduct from his
or her current placement to an appropriate interim alternative
educational setting, another setting, or suspension, for not more than
10 consecutive school days (to the extent those alternatives are applied
to children without disabilities), and for additional removals of not
more than 10 consecutive school days in that same school year for
separate incidents of misconduct (as long as those removals do not
constitute a change of placement under Sec. 300.536).
(2) After a child with a disability has been removed from his or her
current placement for 10 school days in the same school year, during any
subsequent days of removal the public agency must provide services to
the extent required under paragraph (d) of this section.
(c) Additional authority. For disciplinary changes in placement that
would exceed 10 consecutive school days, if the behavior that gave rise
to the violation of the school code is determined not to be a
manifestation of the child's disability pursuant to paragraph (e) of
this section, school personnel may apply the relevant disciplinary
procedures to children with disabilities in the same manner and for the
same duration as the procedures would be applied to children without
disabilities, except as provided in paragraph (d) of this section.
(d) Services. (1) A child with a disability who is removed from the
child's current placement pursuant to paragraphs (c), or (g) of this
section must--
(i) Continue to receive educational services, as provided in
Sec. 300.101(a), so as to enable the child to continue to participate in
the general education curriculum, although in another setting, and to
progress toward meeting the goals set out in the child's IEP; and
(ii) Receive, as appropriate, a functional behavioral assessment,
and behavioral intervention services and modifications, that are
designed to address the behavior violation so that it does not recur.
(2) The services required by paragraph (d)(1), (d)(3), (d)(4), and
(d)(5) of this section may be provided in an interim alternative
educational setting.
(3) A public agency is only required to provide services during
periods of removal to a child with a disability who has been removed
from his or her current placement for 10 school days or less in that
school year, if it provides services to a child without disabilities who
is similarly removed.
(4) After a child with a disability has been removed from his or her
current placement for 10 school days in the same school year, if the
current removal is for not more than 10 consecutive school days and is
not a change of placement under Sec. 300.536, school personnel, in
consultation with at least one of the child's teachers, determine the
extent to which services are needed, as provided in Sec. 300.101(a), so
as to enable the child to continue to participate in the general
education curriculum, although in another setting, and to progress
toward meeting the goals set out in the child's IEP.
(5) If the removal is a change of placement under Sec. 300.536, the
child's IEP Team determines appropriate services under paragraph (d)(1)
of this section.
(e) Manifestation determination. (1) Within 10 school days of any
decision to change the placement of a child with a disability because of
a violation of a code of student conduct, the LEA, the parent, and
relevant members of the child's IEP Team (as determined by the parent
and the LEA) must review all relevant information in the student's file,
including the child's IEP, any teacher observations, and any relevant
information provided by the parents to determine--
(i) If the conduct in question was caused by, or had a direct and
substantial relationship to, the child's disability; or
(ii) If the conduct in question was the direct result of the LEA's
failure to implement the IEP.
(2) The conduct must be determined to be a manifestation of the
child's disability if the LEA, the parent, and relevant members of the
child's IEP Team determine that a condition in either
[[Page 91]]
paragraph (e)(1)(i) or (1)(ii) of this section was met.
(3) If the LEA, the parent, and relevant members of the child's IEP
Team determine the condition described in paragraph (e)(1)(ii) of this
section was met, the LEA must take immediate steps to remedy those
deficiencies.
(f) Determination that behavior was a manifestation. If the LEA, the
parent, and relevant members of the IEP Team make the determination that
the conduct was a manifestation of the child's disability, the IEP Team
must--
(1) Either--
(i) Conduct a functional behavioral assessment, unless the LEA had
conducted a functional behavioral assessment before the behavior that
resulted in the change of placement occurred, and implement a behavioral
intervention plan for the child; or
(ii) If a behavioral intervention plan already has been developed,
review the behavioral intervention plan, and modify it, as necessary, to
address the behavior; and
(2) Except as provided in paragraph (g) of this section, return the
child to the placement from which the child was removed, unless the
parent and the LEA agree to a change of placement as part of the
modification of the behavioral intervention plan.
(g) Special circumstances. School personnel may remove a student to
an interim alternative educational setting for not more than 45 school
days without regard to whether the behavior is determined to be a
manifestation of the child's disability, if the child--
(1) Carries a weapon to or possesses a weapon at school, on school
premises, or to or at a school function under the jurisdiction of an SEA
or an LEA;
(2) Knowingly possesses or uses illegal drugs, or sells or solicits
the sale of a controlled substance, while at school, on school premises,
or at a school function under the jurisdiction of an SEA or an LEA; or
(3) Has inflicted serious bodily injury upon another person while at
school, on school premises, or at a school function under the
jurisdiction of an SEA or an LEA.
(h) Notification. On the date on which the decision is made to make
a removal that constitutes a change of placement of a child with a
disability because of a violation of a code of student conduct, the LEA
must notify the parents of that decision, and provide the parents the
procedural safeguards notice described in Sec. 300.504.
(i) Definitions. For purposes of this section, the following
definitions apply:
(1) Controlled substance means a drug or other substance identified
under schedules I, II, III, IV, or V in section 202(c) of the Controlled
Substances Act (21 U.S.C. 812(c)).
(2) Illegal drug means a controlled substance; but does not include
a controlled substance that is legally possessed or used under the
supervision of a licensed health-care professional or that is legally
possessed or used under any other authority under that Act or under any
other provision of Federal law.
(3) Serious bodily injury has the meaning given the term ``serious
bodily injury'' under paragraph (3) of subsection (h) of section 1365 of
title 18, United States Code.
(4) Weapon has the meaning given the term ``dangerous weapon'' under
paragraph (2) of the first subsection (g) of section 930 of title 18,
United States Code.
(Authority: 20 U.S.C. 1415(k)(1) and (7))
Sec. 300.531 Determination of setting.
The child's IEP Team determines the interim alternative educational
setting for services under Sec. 300.530(c), (d)(5), and (g).
(Authority: 20 U.S.C. 1415(k)(2))
Sec. 300.532 Appeal.
(a) General. The parent of a child with a disability who disagrees
with any decision regarding placement under Secs. 300.530 and 300.531,
or the manifestation determination under Sec. 300.530(e), or an LEA that
believes that maintaining the current placement of the child is
substantially likely to result in injury to the child or others, may
appeal the decision by requesting a hearing. The hearing is requested by
filing a complaint pursuant to Secs. 300.507 and 300.508(a) and (b).
(b) Authority of hearing officer. (1) A hearing officer under
Sec. 300.511 hears,
[[Page 92]]
and makes a determination regarding an appeal under paragraph (a) of
this section.
(2) In making the determination under paragraph (b)(1) of this
section, the hearing officer may--
(i) Return the child with a disability to the placement from which
the child was removed if the hearing officer determines that the removal
was a violation of Sec. 300.530 or that the child's behavior was a
manifestation of the child's disability; or
(ii) Order a change of placement of the child with a disability to
an appropriate interim alternative educational setting for not more than
45 school days if the hearing officer determines that maintaining the
current placement of the child is substantially likely to result in
injury to the child or to others.
(3) The procedures under paragraphs (a) and (b)(1) and (2) of this
section may be repeated, if the LEA believes that returning the child to
the original placement is substantially likely to result in injury to
the child or to others.
(c) Expedited due process hearing. (1) Whenever a hearing is
requested under paragraph (a) of this section, the parents or the LEA
involved in the dispute must have an opportunity for an impartial due
process hearing consistent with the requirements of Secs. 300.507 and
300.508(a) through (c) and Secs. 300.510 through 300.514, except as
provided in paragraph (c)(2) through (4) of this section.
(2) The SEA or LEA is responsible for arranging the expedited due
process hearing, which must occur within 20 school days of the date the
complaint requesting the hearing is filed. The hearing officer must make
a determination within 10 school days after the hearing.
(3) Unless the parents and LEA agree in writing to waive the
resolution meeting described in paragraph (c)(3)(i) of this section, or
agree to use the mediation process described in Sec. 300.506--
(i) A resolution meeting must occur within seven days of receiving
notice of the due process complaint; and
(ii) The due process hearing may proceed unless the matter has been
resolved to the satisfaction of both parties within 15 days of the
receipt of the due process complaint.
(4) A State may establish different State-imposed procedural rules
for expedited due process hearings conducted under this section than it
has established for other due process hearings, but, except for the
timelines as modified in paragraph (c)(3) of this section, the State
must ensure that the requirements in Secs. 300.510 through 300.514 are
met.
(5) The decisions on expedited due process hearings are appealable
consistent with Sec. 300.514.
(Authority: 20 U.S.C. 1415(k)(3) and (4)(B), 1415(f)(1)(A))
Sec. 300.533 Placement during appeals.
When an appeal under Sec. 300.532 has been made by either the parent
or the LEA, the child must remain in the interim alternative educational
setting pending the decision of the hearing officer or until the
expiration of the time period specified in Sec. 300.530(c) or (g),
whichever occurs first, unless the parent and the SEA or LEA agree
otherwise.
(Authority: 20 U.S.C. 1415(k)(4)(A))
[71 FR 46753, Aug. 14, 2006, as amended at 72 FR 61307, Oct. 30, 2007]
Sec. 300.534 Protections for children not determined eligible for
special education and related services.
(a) General. A child who has not been determined to be eligible for
special education and related services under this part and who has
engaged in behavior that violated a code of student conduct, may assert
any of the protections provided for in this part if the public agency
had knowledge (as determined in accordance with paragraph (b) of this
section) that the child was a child with a disability before the
behavior that precipitated the disciplinary action occurred.
(b) Basis of knowledge. A public agency must be deemed to have
knowledge that a child is a child with a disability if before the
behavior that precipitated the disciplinary action occurred--
(1) The parent of the child expressed concern in writing to
supervisory or administrative personnel of the appropriate educational
agency, or a teacher
[[Page 93]]
of the child, that the child is in need of special education and related
services;
(2) The parent of the child requested an evaluation of the child
pursuant to Secs. 300.300 through 300.311; or
(3) The teacher of the child, or other personnel of the LEA,
expressed specific concerns about a pattern of behavior demonstrated by
the child directly to the director of special education of the agency or
to other supervisory personnel of the agency.
(c) Exception. A public agency would not be deemed to have knowledge
under paragraph (b) of this section if--
(1) The parent of the child--
(i) Has not allowed an evaluation of the child pursuant to
Secs. 300.300 through 300.311; or
(ii) Has refused services under this part; or
(2) The child has been evaluated in accordance with Secs. 300.300
through 300.311 and determined to not be a child with a disability under
this part.
(d) Conditions that apply if no basis of knowledge. (1) If a public
agency does not have knowledge that a child is a child with a disability
(in accordance with paragraphs (b) and (c) of this section) prior to
taking disciplinary measures against the child, the child may be
subjected to the disciplinary measures applied to children without
disabilities who engage in comparable behaviors consistent with
paragraph (d)(2) of this section.
(2)(i) If a request is made for an evaluation of a child during the
time period in which the child is subjected to disciplinary measures
under Sec. 300.530, the evaluation must be conducted in an expedited
manner.
(ii) Until the evaluation is completed, the child remains in the
educational placement determined by school authorities, which can
include suspension or expulsion without educational services.
(iii) If the child is determined to be a child with a disability,
taking into consideration information from the evaluation conducted by
the agency and information provided by the parents, the agency must
provide special education and related services in accordance with this
part, including the requirements of Secs. 300.530 through 300.536 and
section 612(a)(1)(A) of the Act.
(Authority: 20 U.S.C. 1415(k)(5))
Sec. 300.535 Referral to and action by law enforcement and judicial
authorities.
(a) Rule of construction. Nothing in this part prohibits an agency
from reporting a crime committed by a child with a disability to
appropriate authorities or prevents State law enforcement and judicial
authorities from exercising their responsibilities with regard to the
application of Federal and State law to crimes committed by a child with
a disability.
(b) Transmittal of records. (1) An agency reporting a crime
committed by a child with a disability must ensure that copies of the
special education and disciplinary records of the child are transmitted
for consideration by the appropriate authorities to whom the agency
reports the crime.
(2) An agency reporting a crime under this section may transmit
copies of the child's special education and disciplinary records only to
the extent that the transmission is permitted by the Family Educational
Rights and Privacy Act.
(Authority: 20 U.S.C. 1415(k)(6))
Sec. 300.536 Change of placement because of disciplinary removals.
(a) For purposes of removals of a child with a disability from the
child's current educational placement under Secs. 300.530 through
300.535, a change of placement occurs if--
(1) The removal is for more than 10 consecutive school days; or
(2) The child has been subjected to a series of removals that
constitute a pattern--
(i) Because the series of removals total more than 10 school days in
a school year;
(ii) Because the child's behavior is substantially similar to the
child's behavior in previous incidents that resulted in the series of
removals; and
(iii) Because of such additional factors as the length of each
removal, the total amount of time the child has been removed, and the
proximity of the removals to one another.
[[Page 94]]
(b)(1) The public agency determines on a case-by-case basis whether
a pattern of removals constitutes a change of placement.
(2) This determination is subject to review through due process and
judicial proceedings.
(Authority: 20 U.S.C. 1415(k))
Sec. 300.537 State enforcement mechanisms.
Notwithstanding Secs. 300.506(b)(7) and 300.510(d)(2), which provide
for judicial enforcement of a written agreement reached as a result of
mediation or a resolution meeting, there is nothing in this part that
would prevent the SEA from using other mechanisms to seek enforcement of
that agreement, provided that use of those mechanisms is not mandatory
and does not delay or deny a party the right to seek enforcement of the
written agreement in a State court of competent jurisdiction or in a
district court of the United States.
(Authority: 20 U.S.C. 1415(e)(2)(F), 1415(f)(1)(B))
Secs. 300.538-300.599 [Reserved]
Subpart F_Monitoring, Enforcement, Confidentiality, and Program
Information
Monitoring, Technical Assistance, and Enforcement
Sec. 300.600 State monitoring and enforcement.
(a) The State must--
(1) Monitor the implementation of this part;
(2) Make determinations annually about the performance of each LEA
using the categories in Sec. 300.603(b)(1);
(3) Enforce this part, consistent with Sec. 300.604, using
appropriate enforcement mechanisms, which must include, if applicable,
the enforcement mechanisms identified in Sec. 300.604(a)(1) (technical
assistance), (a)(3) (conditions on funding of an LEA), (b)(2)(i) (a
corrective action plan or improvement plan), (b)(2)(v) (withholding
funds, in whole or in part, by the SEA), and (c)(2) (withholding funds,
in whole or in part, by the SEA); and
(4) Report annually on the performance of the State and of each LEA
under this part, as provided in Sec. 300.602(b)(1)(i)(A) and (b)(2).
(b) The primary focus of the State's monitoring activities must be
on--
(1) Improving educational results and functional outcomes for all
children with disabilities; and
(2) Ensuring that public agencies meet the program requirements
under Part B of the Act, with a particular emphasis on those
requirements that are most closely related to improving educational
results for children with disabilities.
(c) As a part of its responsibilities under paragraph (a) of this
section, the State must use quantifiable indicators and such qualitative
indicators as are needed to adequately measure performance in the
priority areas identified in paragraph (d) of this section, and the
indicators established by the Secretary for the State performance plans.
(d) The State must monitor the LEAs located in the State, using
quantifiable indicators in each of the following priority areas, and
using such qualitative indicators as are needed to adequately measure
performance in those areas:
(1) Provision of FAPE in the least restrictive environment.
(2) State exercise of general supervision, including child find,
effective monitoring, the use of resolution meetings, mediation, and a
system of transition services as defined in Sec. 300.43 and in 20 U.S.C.
1437(a)(9).
(3) Disproportionate representation of racial and ethnic groups in
special education and related services, to the extent the representation
is the result of inappropriate identification.
(e) In exercising its monitoring responsibilities under paragraph
(d) of this section, the State must ensure that when it identifies
noncompliance with the requirements of this part by LEAs, the
noncompliance is corrected as soon as possible, and in no case later
than one year after the State's identification of the noncompliance.
(Approved by the Office of Management and Budget under control number
1820-0624)
(Authority: 20 U.S.C. 1416(a))
[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]
[[Page 95]]
Sec. 300.601 State performance plans and data collection.
(a) General. Not later than December 3, 2005, each State must have
in place a performance plan that evaluates the State's efforts to
implement the requirements and purposes of Part B of the Act, and
describes how the State will improve such implementation.
(1) Each State must submit the State's performance plan to the
Secretary for approval in accordance with the approval process described
in section 616(c) of the Act.
(2) Each State must review its State performance plan at least once
every six years, and submit any amendments to the Secretary.
(3) As part of the State performance plan, each State must establish
measurable and rigorous targets for the indicators established by the
Secretary under the priority areas described in Sec. 300.600(d).
(b) Data collection. (1) Each State must collect valid and reliable
information as needed to report annually to the Secretary on the
indicators established by the Secretary for the State performance plans.
(2) If the Secretary permits States to collect data on specific
indicators through State monitoring or sampling, and the State collects
the data through State monitoring or sampling, the State must collect
data on those indicators for each LEA at least once during the period of
the State performance plan.
(3) Nothing in Part B of the Act shall be construed to authorize the
development of a nationwide database of personally identifiable
information on individuals involved in studies or other collections of
data under Part B of the Act.
(Approved by the Office of Management and Budget under control number
1820-0624)
(Authority: 20 U.S.C. 1416(b))
Sec. 300.602 State use of targets and reporting.
(a) General. Each State must use the targets established in the
State's performance plan under Sec. 300.601 and the priority areas
described in Sec. 300.600(d) to analyze the performance of each LEA.
(b) Public reporting and privacy--(1) Public report.
(i) Subject to paragraph (b)(1)(ii) of this section, the State
must--
(A) Report annually to the public on the performance of each LEA
located in the State on the targets in the State's performance plan as
soon as practicable but no later than 120 days following the State's
submission of its annual performance report to the Secretary under
paragraph (b)(2) of this section; and
(B) Make each of the following items available through public means:
the State's performance plan, under Sec. 300.601(a); annual performance
reports, under paragraph (b)(2) of this section; and the State's annual
reports on the performance of each LEA located in the State, under
paragraph (b)(1)(i)(A) of this section. In doing so, the State must, at
a minimum, post the plan and reports on the SEA's Web site, and
distribute the plan and reports to the media and through public
agencies.
(ii) If the State, in meeting the requirements of paragraph
(b)(1)(i) of this section, collects performance data through State
monitoring or sampling, the State must include in its report under
paragraph (b)(1)(i)(A) of this section the most recently available
performance data on each LEA, and the date the data were obtained.
(2) State performance report. The State must report annually to the
Secretary on the performance of the State under the State's performance
plan.
(3) Privacy. The State must not report to the public or the
Secretary any information on performance that would result in the
disclosure of personally identifiable information about individual
children, or where the available data are insufficient to yield
statistically reliable information.
(Approved by the Office of Management and Budget under control number
1820-0624)
(Authority: 20 U.S.C. 1416(b)(2)(C))
[71 FR 46753, Aug. 14, 2006, as amended at 73 FR 73027, Dec. 1, 2008]
[[Page 96]]
Sec. 300.603 Secretary's review and determination regarding State
performance.
(a) Review. The Secretary annually reviews the State's performance
report submitted pursuant to Sec. 300.602(b)(2).
(b) Determination--(1) General. Based on the information provided by
the State in the State's annual performance report, information obtained
through monitoring visits, and any other public information made
available, the Secretary determines if the State--
(i) Meets the requirements and purposes of Part B of the Act;
(ii) Needs assistance in implementing the requirements of Part B of
the Act;
(iii) Needs intervention in implementing the requirements of Part B
of the Act; or
(iv) Needs substantial intervention in implementing the requirements
of Part B of the Act.
(2) Notice and opportunity for a hearing. (i) For determinations
made under paragraphs (b)(1)(iii) and (b)(1)(iv) of this section, the
Secretary provides reasonable notice and an opportunity for a hearing on
those determinations.
(ii) The hearing described in paragraph (b)(2) of this section
consists of an opportunity to meet with the Assistant Secretary for
Special Education and Rehabilitative Services to demonstrate why the
Department should not make the determination described in paragraph
(b)(1) of this section.
(Authority: 20 U.S.C. 1416(d))
Sec. 300.604 Enforcement.
(a) Needs assistance. If the Secretary determines, for two
consecutive years, that a State needs assistance under
Sec. 300.603(b)(1)(ii) in implementing the requirements of Part B of the
Act, the Secretary takes one or more of the following actions:
(1) Advises the State of available sources of technical assistance
that may help the State address the areas in which the State needs
assistance, which may include assistance from the Office of Special
Education Programs, other offices of the Department of Education, other
Federal agencies, technical assistance providers approved by the
Secretary, and other federally funded nonprofit agencies, and requires
the State to work with appropriate entities. Such technical assistance
may include--
(i) The provision of advice by experts to address the areas in which
the State needs assistance, including explicit plans for addressing the
area for concern within a specified period of time;
(ii) Assistance in identifying and implementing professional
development, instructional strategies, and methods of instruction that
are based on scientifically based research;
(iii) Designating and using distinguished superintendents,
principals, special education administrators, special education
teachers, and other teachers to provide advice, technical assistance,
and support; and
(iv) Devising additional approaches to providing technical
assistance, such as collaborating with institutions of higher education,
educational service agencies, national centers of technical assistance
supported under Part D of the Act, and private providers of
scientifically based technical assistance.
(2) Directs the use of State-level funds under section 611(e) of the
Act on the area or areas in which the State needs assistance.
(3) Identifies the State as a high-risk grantee and imposes special
conditions on the State's grant under Part B of the Act.
(b) Needs intervention. If the Secretary determines, for three or
more consecutive years, that a State needs intervention under
Sec. 300.603(b)(1)(iii) in implementing the requirements of Part B of
the Act, the following shall apply:
(1) The Secretary may take any of the actions described in paragraph
(a) of this section.
(2) The Secretary takes one or more of the following actions:
(i) Requires the State to prepare a corrective action plan or
improvement plan if the Secretary determines that the State should be
able to correct the problem within one year.
(ii) Requires the State to enter into a compliance agreement under
section 457 of the General Education Provisions Act, as amended, 20
U.S.C. 1221 et seq. (GEPA), if the Secretary has reason to believe that
the State cannot correct the problem within one year.
[[Page 97]]
(iii) For each year of the determination, withholds not less than 20
percent and not more than 50 percent of the State's funds under section
611(e) of the Act, until the Secretary determines the State has
sufficiently addressed the areas in which the State needs intervention.
(iv) Seeks to recover funds under section 452 of GEPA.
(v) Withholds, in whole or in part, any further payments to the
State under Part B of the Act.
(vi) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.
(c) Needs substantial intervention. Notwithstanding paragraph (a) or
(b) of this section, at any time that the Secretary determines that a
State needs substantial intervention in implementing the requirements of
Part B of the Act or that there is a substantial failure to comply with
any condition of an SEA's or LEA's eligibility under Part B of the Act,
the Secretary takes one or more of the following actions:
(1) Recovers funds under section 452 of GEPA.
(2) Withholds, in whole or in part, any further payments to the
State under Part B of the Act.
(3) Refers the case to the Office of the Inspector General at the
Department of Education.
(4) Refers the matter for appropriate enforcement action, which may
include referral to the Department of Justice.
(d) Report to Congress. The Secretary reports to the Committee on
Education and the Workforce of the House of Representatives and the
Committee on Health, Education, Labor, and Pensions of the Senate within
30 days of taking enforcement action pursuant to paragraph (a), (b), or
(c) of this section, on the specific action taken and the reasons why
enforcement action was taken.
(Authority: 20 U.S.C. 1416(e)(1)-(e)(3), (e)(5))
Sec. 300.605 Withholding funds.
(a) Opportunity for hearing. Prior to withholding any funds under
Part B of the Act, the Secretary provides reasonable notice and an
opportunity for a hearing to the SEA involved, pursuant to the
procedures in Secs. 300.180 through 300.183.
(b) Suspension. Pending the outcome of any hearing to withhold
payments under paragraph (a) of this section, the Secretary may suspend
payments to a recipient, suspend the authority of the recipient to
obligate funds under Part B of the Act, or both, after the recipient has
been given reasonable notice and an opportunity to show cause why future
payments or authority to obligate funds under Part B of the Act should
not be suspended.
(c) Nature of withholding. (1) If the Secretary determines that it
is appropriate to withhold further payments under Sec. 300.604(b)(2) or
(c)(2), the Secretary may determine--
(i) That the withholding will be limited to programs or projects, or
portions of programs or projects, that affected the Secretary's
determination under Sec. 300.603(b)(1); or
(ii) That the SEA must not make further payments under Part B of the
Act to specified State agencies or LEAs that caused or were involved in
the Secretary's determination under Sec. 300.603(b)(1).
(2) Until the Secretary is satisfied that the condition that caused
the initial withholding has been substantially rectified--
(i) Payments to the State under Part B of the Act must be withheld
in whole or in part; and
(ii) Payments by the SEA under Part B of the Act must be limited to
State agencies and LEAs whose actions did not cause or were not involved
in the Secretary's determination under Sec. 300.603(b)(1), as the case
may be.
(Authority: 20 U.S.C. 1416(e)(4), (e)(6))
Sec. 300.606 Public attention.
Whenever a State receives notice that the Secretary is proposing to
take or is taking an enforcement action pursuant to Sec. 300.604, the
State must, by means of a public notice, take such actions as may be
necessary to notify the public within the State of the pendency of an
action pursuant to Sec. 300.604, including, at a minimum, by posting the
notice on the SEA's Web site and distributing the notice to the media
and through public agencies.
(Authority: 20 U.S.C. 1416(e)(7))
[73 FR 73028, Dec. 1, 2008]
[[Page 98]]
Sec. 300.607 Divided State agency responsibility.
For purposes of this subpart, if responsibility for ensuring that
the requirements of Part B of the Act are met with respect to children
with disabilities who are convicted as adults under State law and
incarcerated in adult prisons is assigned to a public agency other than
the SEA pursuant to Sec. 300.149(d), and if the Secretary finds that the
failure to comply substantially with the provisions of Part B of the Act
are related to a failure by the public agency, the Secretary takes
appropriate corrective action to ensure compliance with Part B of the
Act, except that--
(a) Any reduction or withholding of payments to the State under
Sec. 300.604 must be proportionate to the total funds allotted under
section 611 of the Act to the State as the number of eligible children
with disabilities in adult prisons under the supervision of the other
public agency is proportionate to the number of eligible individuals
with disabilities in the State under the supervision of the SEA; and
(b) Any withholding of funds under Sec. 300.604 must be limited to
the specific agency responsible for the failure to comply with Part B of
the Act.
(Authority: 20 U.S.C. 1416(h))
Sec. 300.608 State enforcement.
(a) If an SEA determines that an LEA is not meeting the requirements
of Part B of the Act, including the targets in the State's performance
plan, the SEA must prohibit the LEA from reducing the LEA's maintenance
of effort under Sec. 300.203 for any fiscal year.
(b) Nothing in this subpart shall be construed to restrict a State
from utilizing any other authority available to it to monitor and
enforce the requirements of Part B of the Act.
(Authority: 20 U.S.C. 1416(f); 20 U.S.C. 1412(a)(11))
Sec. 300.609 Rule of construction.
Nothing in this subpart shall be construed to restrict the Secretary
from utilizing any authority under GEPA, including the provisions in 34
CFR parts 76, 77, and 81 and 2 CFR part 200 to monitor and enforce the
requirements of the Act, including the imposition of special or high-
risk conditions under 2 CFR 200.207 and 3474.10.
(Authority: 20 U.S.C. 1416(g))
[79 FR 76097, Dec. 19, 2014]
Confidentiality of Information
Sec. 300.610 Confidentiality.
The Secretary takes appropriate action, in accordance with section
444 of GEPA, to ensure the protection of the confidentiality of any
personally identifiable data, information, and records collected or
maintained by the Secretary and by SEAs and LEAs pursuant to Part B of
the Act, and consistent with Secs. 300.611 through 300.627.
(Authority: 20 U.S.C. 1417(c))
Sec. 300.611 Definitions.
As used in Secs. 300.611 through 300.625--
(a) Destruction means physical destruction or removal of personal
identifiers from information so that the information is no longer
personally identifiable.
(b) Education records means the type of records covered under the
definition of ``education records'' in 34 CFR part 99 (the regulations
implementing the Family Educational Rights and Privacy Act of 1974, 20
U.S.C. 1232g (FERPA)).
(c) Participating agency means any agency or institution that
collects, maintains, or uses personally identifiable information, or
from which information is obtained, under Part B of the Act.
(Authority: 20 U.S.C. 1221e-3, 1412(a)(8), 1417(c))
Sec. 300.612 Notice to parents.
(a) The SEA must give notice that is adequate to fully inform
parents about the requirements of Sec. 300.123, 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
[[Page 99]]
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 FERPA and
implementing regulations in 34 CFR part 99.
(b) Before any major identification, location, or evaluation
activity, the notice must be published or announced in newspapers or
other media, or both, with circulation adequate to notify parents
throughout the State of the activity.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.613 Access rights.
(a) Each participating agency must 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
must comply with a request without unnecessary delay and before any
meeting regarding an IEP, or any hearing pursuant to Sec. 300.507 or
Secs. 300.530 through 300.532, or resolution session pursuant to
Sec. 300.510, and in no case more than 45 days after the request has
been made.
(b) The right to inspect and review education records under this
section includes--
(1) The right to a response from the participating agency to
reasonable requests for explanations and interpretations of the records;
(2) The right to request that the agency provide copies of the
records containing the information if failure to provide those copies
would effectively prevent the parent from exercising the right to
inspect and review the records; and
(3) The right to have a representative of the parent inspect and
review the records.
(c) An agency may presume that the parent has authority to inspect
and review records relating to his or her child unless the agency has
been advised that the parent does not have the authority under
applicable State law governing such matters as guardianship, separation,
and divorce.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.614 Record of access.
Each participating agency must keep a record of parties obtaining
access to education records collected, maintained, or used under Part B
of the Act (except access by parents and authorized employees of the
participating agency), including the name of the party, the date access
was given, and the purpose for which the party is authorized to use the
records.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.615 Records on more than one child.
If any education record includes information on more than one child,
the parents of those children have the right to inspect and review only
the information relating to their child or to be informed of that
specific information.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.616 List of types and locations of information.
Each participating agency must provide parents on request a list of
the types and locations of education records collected, maintained, or
used by the agency.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.617 Fees.
(a) Each participating agency may charge a fee for copies of records
that are made for parents under this part if the fee does not
effectively prevent the parents from exercising their right to inspect
and review those records.
(b) A participating agency may not charge a fee to search for or to
retrieve information under this part.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.618 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
[[Page 100]]
agency that maintains the information to amend the information.
(b) The agency must 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 must inform the parent of the refusal
and advise the parent of the right to a hearing under Sec. 300.619.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.619 Opportunity for a hearing.
The agency must, on request, provide an opportunity for a hearing to
challenge information in education records to ensure that it is not
inaccurate, misleading, or otherwise in violation of the privacy or
other rights of the child.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))
Sec. 300.620 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 must amend the information
accordingly and so inform the parent in writing.
(b) If, as a result of the hearing, the agency decides that the
information is not inaccurate, misleading, or otherwise in violation of
the privacy or other rights of the child, it must inform the parent of
the parent's right to place in the records the agency maintains on the
child a statement commenting on the information or setting forth any
reasons for disagreeing with the decision of the agency.
(c) Any explanation placed in the records of the child under this
section must--
(1) Be maintained by the agency as part of the records of the child
as long as the record or contested portion is maintained by the agency;
and
(2) If the records of the child or the contested portion is
disclosed by the agency to any party, the explanation must also be
disclosed to the party.
(Authority: 20 U.S.C. 1412(a)(8); 1417(c))